Family Court Pandemic Tools to Try-out for Permanence

Today’s guest bloggers are the Hon. Justice David Price, and lawyer Ken Chasse. Mr. Justice David Price is a judge of the Superior Court of Ontario in Brampton, Ontario. Ken Chasse, J.D., LL.M., is a member of the Law Society of Ontario and of the Law Society of British Columbia, and the first Director of Research of LAO LAW at Legal Aid Ontario. LAO LAW’s creation and its technology of centralized legal research are described in, Ken Chasse, “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, Nov. 8, 2018), sections 8 to 10(1), pp. 50-76. 

In response to COVID-19, the courts have suspended hearings in courtrooms, and conduct them remotely instead, on electronic platforms such as Zoom or FaceTime. Without courthouse staff to manage the flow of documents between litigants and judges, a small number of Trial Coordinators now receive requests from litigants and lawyers for hearings and convey them to Local Administrative judges, who screen them for urgency and assign them to judges to hear.

Self-represented litigants find the requirements for these urgent hearings especially challenging. They must meet a new legal test of urgency, submit all documents electronically, and conform to strict time limits. Owing to health precautions, there are fewer resources to guide them through the court process. Legal Aid Ontario has reduced the operations of its Duty Counsel offices and Family Law Information Centres, and the courts have all but eliminated the counter staff who, in normal times, give the public general information about required documents and procedural rules. Law Societies and Law Associations have closed their libraries, forcing litigants to rely almost exclusively on electronic databases such as CanLII.

In family law proceedings, the challenges for self-represented litigants will soon be heightened by amendments to the Divorce Act (Bill C-78), which will change the language of family law proceedings. The terms “custody” and “access”, for example, will be replaced by the expressions, “decision-making responsibility” and “parenting time”. These changes will reduce the relevance of existing online resources self-represented litigants often use when drafting documents for court.

In light of these challenges, it is incumbent on the courts, the Provincial Ministries of the Attorney General, Legal Aid Plans, and Law Societies to re-assess the way they use their financial and human resources to give litigants the access to justice that is a fundamental legal principle guaranteed by the Canadian Charter of Rights and Freedoms (“the Charter”). This article will address two tools that could be more widely used in family proceedings to achieve that goal: (1) Order templates; and, (2) standard legal memoranda.

Order templates

Our legal process is designed to help litigants settle family disputes by either a separation agreement or a court order. When lawyers draft a separation agreement, they often draw the wording from data banks containing precedents or standard paragraphs dealing with issues from parenting and division of assets to child and spousal support. When judges issue judgments, they often use the wording of their own Orders from earlier cases, or from draft Orders that lawyers submit to them.

COVID-19 protocols require litigants to submit draft Orders with their motion material. This is a challenge for self-represented litigants, who may not know the wording that judges routinely use to formulate their decisions.

Self-represented litigants can use the wording of paragraphs from the sample Order template that can be found on the National Self-Represented Litigants Project (NSRLP) website. [This resource can be found as an additional resource link on the page for the 2017 podcast episode featuring Justice Price, “Judges and SRLs: Opening a Dialogue”]. They can cut and paste the paragraphs that best reflect what they want into the draft Orders they submit to the Court.

Standard legal memoranda

Another challenge for Self-Represented Litigants is writing a factum, or written legal argument that supports the Orders they are requesting. Judges make most decisions based on a legal test that can be found in legislation, such as the Divorce Act, or in reasons the courts have given for past decisions.  These legal tests, such as “the best interests of the child”, and the factors a judge must consider when applying them, such as “the ability of each parent to provide the necessities of life”, are taught at law schools but are difficult for self-represented litigants to find within the time limits that the court rules impose. A judge usually knows the legal test, but may expect litigants to identify the test and describe how the evidence in the case proves the facts the judge must consider when applying it.

Legal Aid Ontario’s legal research unit, LAO LAW, produces standard memoranda that provide such descriptions and explanations about family law subjects. They are written by the lawyers at LAO LAW who specialize in doing legal research in relation to family law problems. But those memos could easily be edited to be used by people without lawyers. Such memoranda would be helpful in understanding legal problems, arguing cases in court, and for writing arguments to be given to judges. Which in turn would help the courts deal with more cases every day.

But access to these memos (revised if necessary) in order that people without lawyers can use them for their cases in family court, will require the help of the Attorney General. Currently, these memos are supposed to be used only by lawyers, and only for their Legal Aid cases. But they should be made available to all litigants, and not just those who qualify for Legal Aid’s help. The Charter guaranties that we all have the benefit of the rule of law. For many cases that is not possible without the help of lawyers. Access to these memos would be a step toward making the rule of law available to people without lawyers. And they would make judges and courts more cost-efficient, a better use of tax money. But Legal Aid cannot itself make the decision to allow such memos to be used by people who have not qualified for Legal Aid’s help.

The responsibility of the Attorney General

That decision has to be made by the Attorney General, because it is the Attorney General who decides how taxpayers’ money is to be spent on the institutions of the justice system. The A.G. has to be made aware that there are more politically-wise ways of managing taxpayers’ money than by cutting funding to Legal Aid.

The more that the funding for any institution in the justice system is cut, the more efficiency innovations are necessary. But lawyers, judges, and Attorneys-General do not have the expertise to assess cost efficiencies, just as doctors are not generally the people best-equipped to make hospitals and ambulances more efficient. The unaffordability of lawyers is not a legal problem, but a production-of-services problem for which lawyers lack the necessary expertise. That includes Attorneys General.

Unfortunately, the efficient management of the justice system has been left almost entirely to lawyers. And successful innovations now desperately needed to solve the problems of courts and unrepresented litigants are unlikely to come from lawyers.

Making LAO LAW’s memos available to self-represented litigants would expand the reach of legal assistance to those coming without a lawyer to court who do not qualify for Legal Aid. Any number of judges (including my co-author) would tell you that a well-prepared SRL saves them time and stress in managing their courtroom. Pressure needs to be applied to Attorneys General to make them aware of the interplay of such economic factors, and to require Legal Aid to make such memoranda available to litigants without lawyers. Like other innovations that the COVID-19 pandemic has made necessary, this innovation is worthy of permanence.