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Legal Aid Funding and Access to Justice

Sydney Osmar‘s blog from yesterday covered the issue of the recent cuts to legal aid funding, which can only be expected to result in increased barriers to Ontario residents in accessing the court system.

Within the context of estates, high legal fees may contribute to the inability of (would-be) litigants to obtain able assistance in accessing the court system.  Some meritorious estate and capacity-related litigation may not be commenced simply because of a lack of funds required to hire a lawyer to assist in doing so.

While successful parties may be awarded some portion of the legal fees that they have incurred, payable by the unsuccessful party to the litigation (or out of the assets of the estate), recovery of all legal fees incurred in pursuing litigation is rare.  The balance of legal fees that a party can be expected to pay out of whatever benefit they may ultimately receive dependent on the outcome of the litigation may eliminate some or all of the financial benefit of the funds that they may stand to receive.

For example, a dependant’s support application brought by a surviving spouse who lacks the financial means to support him or herself may result in protracted litigation.  Even if the application for dependant’s support is successful, the court may not always make an order that adequately reflects the entitlements of the dependant and the total fees that he or she has incurred to bring the application, limiting the funds available for the dependant’s expenses going forward.  While interim support orders or orders directing payments toward professional fees related to bringing the application may be available during litigation in some circumstances, the related motions will serve to further increase the legal fees incurred by the applicant if such relief is not obtained on consent.  In the absence of contribution from the assets of the estate to fund the litigation or an alternative arrangement for the payment of legal fees, it may not be possible for a surviving spouse in need to make a dependant’s support claim in the first place or he or she may need to do so without a lawyer’s assistance.

In 2016, it was reported that the numbers of self-represented litigants in Canada have increased over the last two decades and more significantly in recent years.  The inability to afford a lawyer and ineligibility for legal aid assistance were cited as the primary reasons why a party is self-represented.  Research suggests that parties who are self-represented are less likely to be successful in litigation (with success rates of only 4% in responding to motions for summary judgment, 12.5% for motions and applications, and 14% at trial) than represented parties.

While assistance with estate-related matters may be available to some from the Advocacy Centre for the Elderly, the Queen’s University Elder Law Clinic, or other clinics (which are funded by Legal Aid Ontario and will be impacted by the recent budget cuts) in some circumstances, many individuals simply do not qualify for assistance or require assistance that is not provided by these clinics.

Our colleague, The Honourable R. Roy McMurtry, is a strong advocate for access to justice and has expressed the following sentiment: “[O]ur freedoms are at best fragile…they depend on the ability of every citizen to assert in a court or tribunal their rights under law as well as receiving sound legal advice as to their obligations.  Indeed, our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of society.”

Unfortunately, greater numbers of individuals than previously may struggle to access just resolutions of estates and other matters as a result of the recent changes to legal aid funding in Ontario.

Thank you for reading.

Nick Esterbauer