Between a Rock and a Hard Place: Unreasonable Choices for Family Litigants

Between a Rock and a Hard Place: Unreasonable Choices for Family Litigants

Too many family court litigants find themselves facing “Sophie’s Choice” – a no-win.

Sending your Kid to College versus Having a Lawyer Represent You

When Derek (not his real name) ended his marriage after 10 years he and his ex-wife could not agree over custody of and access to their young son. Derek proposed mediation several times – “I really don’t want to do court and get into the ‘I-said she-said game.” – but his ex was unwilling to use mediation and hired a lawyer.

So Derek contacted a number of lawyers, and was asked in each case for a substantial retainer.  As he acknowledged in his interview, “I could borrow the money I suppose. But I don’t feel like dropping $12,000 that could be used for my child’s education down the road and instead would be used on something as meaningless as this. I want to use the money I have for my for son’s future, not a lawsuit.”

Derek was frustrated that the court would not take a firmer line about at least attempting mediation. “The courts are using taxpayers money after all.” He was equally frustrated at the idea that he would use his savings to pay for a lawyer: “why would I use that money this way when we could mediate?”

Making a Living Versus Accessing Public Legal Assistance

Katherine (not her real name) was a well-paid human resources executive when she faced a claim for sole custody of the younger of her two sons from her ex-husband (they had divorced several years earlier) following his remarriage.

Far too well paid to qualify for legal aid, yet being asked for a level of financial commitment she felt she could not afford from the lawyers she consulted, Katherine plunged into representing herself. She hoped that her education and experience would help her. In her first interview she told me, “If it were not that I am articulate and confident, if I had not had the experience I have had in my HR career, I would be having a nervous breakdown, I would be buried under this stuff”.

Within a short time, Katherine was buried. She was spending up to three hours every day working on the lawsuit. Each time she went to court – often only to have the matter adjourned – “(it) was a six hour day – how could I have a full time job?” She resigned her position, the beginning of a period during which she took occasional short-term contracts, but found herself unable to maintain a long-term professional commitment because of the burden of representing herself. As a result, Katherine told me, “my son and I are being pushed further and further into poverty.”

Of course, having recently earned a good salary, Katherine did not qualify for Legal Aid – until 18 months later. Katherine was dizzy with gratitude to finally gain access to public legal assistance. “After 20 months, 20 court appearances, 15 judges, and 2,500 legal documents on file – I am so gratefully now that I have a lawyer! “But she added, “Now I have to decide if I can restart my career. As soon as I do that, I shall lose my lawyer again.”

Representing Yourself versus Giving Up

Mary (not her real name) has been disputing over custody and access to her two sons with her ex-husband for more than two years. In a low paid job, Mary does not qualify for Legal Aid. Mary also has significant personal debt as a result of legal bills incurred when she initially retained a lawyer (and like Katherine, above, paid 50% of a $15,000 custody evaluation).

Recently Mary grabbed some headlines ( when her effort to represent herself drew praise from a provincial court judge who described her as “intelligent and articulate” – and concluded that she did not require public legal assistance to help her to bring her case for increased access to her sons, who are living with her former spouse and his new partner.

Mary is facing the stark choice that many family litigants described to me (Research Report) – to either continue to struggle through representing herself (after two years, most SRL’s are exhausted, depressed, and many feel themselves to be at a hopeless disadvantage) – or to give up. Giving up here means giving up the type of contact with her children that Mary feels is important, essential even, to continuing to be their mom.

In the face of these choices, what would you do?

Can We Provide Better Choices?

Family transitions and resulting conflicts, especially conflicts over children, are always painful. None of those I interviewed for my study imagined that the legal system can offer them all the answers.

But we can surely provide more palatable choices than those described here, which are shared by many others in my study. Here are just three of the ideas that form part of the study recommendations (10 Action Steps:

1. Enhance both access and supports (in the form of preparatory coaching, and ILA) for SRLs wanting to use mediation and other dispute resolution services, and think more boldly about the role that the courts could play in nudging recalcitrant parties towards these programs.

2. Translate the reality of the SRL phenomenon into how we deliver summary advice services – the most common means of public legal assistance across Canada. Instead of the traditional model – 30 or 45 minutes of legal advice focused on helping the client decide whether or not to pursue a suit and retain counsel – summary sessions need recalibrating to the new reality of SRLs. Summary advice sessions should focus on coaching and mentoring for SRLs who will walk away from this brief meeting needing to continue to handle their case by themselves. Summary advice is no longer about “should I hire a lawyer?” Until private legal services become more affordable, these resources should refocus on helping SRLs to take the next steps in their journey.

3. Take urgent and concrete steps to train future legal practitioners to assist SRLs. My study shows that the vast majority (86%) of SRLs desire and require legal assistance, but cannot afford a traditional retainer arrangement in which the lawyer does “everything”. This means equipping new lawyers with the skills and tools to offer SRLs/ part-time clients unbundled legal services – a working “partnership” that reflects contemporary norms of self-help and value-for-money.

We can offer family litigants deserve better choices. Let’s start working to avoid placing so many between a rock and a hard place.

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