By Wayne A. Barkauskas
The downturn in Alberta’s economy has impacted both clients and lawyers managing family law issues in many different ways. Not only have the practical issues changed, including more bankruptcies and challenges in finding ways to address significant debt loads in the midst of asset bases that have eroded, but also in addressing barriers to dispute resolution that are even more significant for families with reduced financial resources.
I was recently asked to do an interview for the evening news. The story related to the dramatic toll the economy is having on people dealing with issues related to their separation or divorce. It stemmed from stories of support payors committing suicide after experiencing difficulties changing child and spousal support payments following financial setbacks.
After a one-hour interview, the journalist told me that they would have to completely redo their news story because they had no idea that the justice issues behind the problem were so large, complex, and relatively unknown to those outside family law. She was stunned that such a significant social issue was so hidden from public view and open discussion.
Having practiced family law in Alberta for more than 25 years, I have now had the chance to see how financial cycles impact both a lawyer’s practice and the families we serve. There have been many changes over that time, both positive and negative.
The positive changes include the rise of alternative dispute resolution (ADR) processes which give clients greater control over results, and the increased knowledge, understanding and application of psychological and sociological principles by lawyers and judges in finding solutions for families. These positive changes, however, almost exclusively benefit the families that have the resources to bring them into play.
For those with fewer financial resources, cuts to legal aid for family law issues (rather dramatic over this period) mean that many people have almost no detailed guidance concerning the law, strategy, processes, nor any objective analysis of their legal issues. Providing “case managers”, “duty counsel” and other forms of “drive-by” assistance does little to solve this inherent problem. The result is that judges are left with unrepresented parties, neither of whom knows the law, the Rules of Court or the various alternative methods available to solve the issues they face, who have little ability to objectivley evaluate whether their issues should even be before a judge. Judges may also have little family law experience, given current selection criteria and the organization of our court, at least at the Queen’s Bench level. They do not have the benefit of counsel guiding them to the proper case law and rules, and are left largely on their own to do this leg work. All of this, not surprisingly, leads to dramatic delays at court as judges try to provide basic procedural guidance to parties, but without giving them legal advice, and cases become drawn out wars of attrition as clients fumble their way toward final hearings.
For lawyers, this means that delays in the court system have grown to the point that clients are shocked when advised, for example, that it will usually take months to get into court to change a support order if there are any significant disagreements to be resolved. If a trial of moderate length is required for parenting issues, the wait will often be years until the next trial date is available. The delays in getting to court end up costing the clients even more money because interim legal issues arise the entire time parties wait for a trial. Unresolved underlying issues create even more conflict, not only costing parties more money and making files harder to manage, but perpetuating and increasing the trauma felt by the whole family, especially children.
As a consequence, in many parts of Alberta, especially Calgary, clients are guided by counsel into mediation, arbitration, collaborative law and parenting coordination. For many practitioners, court has become the “alternative” dispute resolution process. While some form of some of these ADR processes are available through the courts for those who cannot afford private services, people enter them with no legal representative with whom they have built a trusted relationship to advise them of the advantages and disadvantages of these alternatives, nor do they have the benefit of independent legal advice to guide them in negotiations.
All of these problems existed before the economic crisis hit Alberta, but the impact of the current economy has only exacerbated the problem. Obviously, fewer people can afford legal representation, which leaves them among the most negatively impacted group. Even those who can afford counsel may have reduced cash flow, which means that they may need to instruct counsel to slow processes even further to bear their ongoing legal fees.
Many of the urgent crises people now face involve financial difficulties. The lack of access to legal advice regarding the appropriate method of resolving the issue (going to court rather than negotiating with MEP for example), along with inherent court delays, leave people feeling helpless. This can lead to people taking extreme actions. It would be rare for a family lawyer not to have had one or more files in the last 5 years impacted by a suicide. Domestic violence incidents have increased during the economic crisis as well, with Alberta having one of the worst provincial rates of domestic violence. While the Calgary Police Service reported a slight reduction in 2019 over 2018, the current rate is still considerably higher than the five-year average for the province. It was also recently reported that more than half of the murders in Calgary in 2019 (54%) were related to domestic violence.
I would be remiss if I did not also mention the financial impact upon lawyers. Although lawyers are loath to ever discuss weaknesses, including downturns in their business, two things are obvious. Firstly, fewer people can afford legal representation and so there is less work to go around. Secondly, other areas of practice have seen even greater reductions in business, resulting in more lawyers trying to take on family law matters.
The impact on both clients and lawyers is, in fairness, partially offset by more lawyers offering “limited scope retainers” to clients. This creates a middle ground where a client can get some independent advice and guidance, but at a lower cost relative to the lawyer handling their entire file. It still leaves the client more exposed than with full representation, but as reported through the research by the Canadian Research Institute for Law and the Family (https://prism.ucalgary.ca/handle/1880/107805), they are most certainly better off than with no legal guidance at all.
The profession continues to respond to challenges with innovations such as creative ADR processes designed to assist clients dealing with court delays and limited scope retainers to help reduce the cost of legal assistance. The court continues to try to respond by providing some limited ADR options in-house and providing limited procedural guidance. The crisis in the courts with respect to family law matters, however, is not likely to be addressed in any meaningful sense as long as governments refuse to acknowledge that there is a crisis and allocate the funds that are necessary to address it.
Early independent legal advice is a critical part of the filter that courts rely upon to ensure only appropriate matters end up in front of a judge. A restoration of legal aid services to address this gap would have a huge impact.
In addition, there are many ADR professionals who would be open to providing ADR through a legal aid certificate, thereby taking additional pressure off the courts, but the legal aid system currently has nothing in place that would allow for such a service. In fact, legal aid generally is constructed around the concept that the primary method of resolving family disputes is in court. While that might have been the case 30 years ago, it is now the last method that many practitioners consider employing to resolve family law disputes.
Finally, implementation of unified family courts in Alberta, a concept already deployed in several other provinces, has been delayed year after year, despite the near universal support of the concept by the bar and bench. In a unified family court system, clients could receive all family law-related court services in one court with specialized judges, rather than in several courts with generalist judges as is now often the case. The federal government announced funding for this type of court in Alberta approximately four years ago, yet the court still has not been established and the new provincial government has not indicated whether it intends to take the necessary steps and incur the costs needed to complete implementation, let alone whether this is indeed a priority for government.
In summary, while significant advances have been made in family law over the last 30 years, there has also been notable deterioration in certain areas, and the downturn in the economy has dramatically increased the impact of these systemic problems. Despite the severity of the problem, clients who are impacted lament in private because they wish their private lives to remain so. The result is that the problem remains largely hidden from view, except for those involved in the family justice system on a day to day basis.
Wayne A. Barkauskas is a past president of the CBA Alberta Branch and past chair of the CBA Alberta Agenda for Justice & Advocacy Committee. He is a partner at Wise Scheible Barkauskas where he practices exclusively in family law, and is a qualified mediator, arbitrator and parenting coordinator.