Tag: 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.
Following the theme of my last blog, a very colourful Endorsement was recently rendered by the Honourable Justice Skarica, in a matter unrelated to estates, in which the opening sentence of was as follows,
“This is a costs order that is essentially meaningless”.
Ms. De Cruz Lee was the Applicant in De Cruz Lee v. Lee. Ms. De Cruz Lee was at one time married to the Respondent Mr. Lee. Ms. De Cruz Lee went through two different lawyers before representing herself at trial. Although the trial was originally scheduled for 1-2 days, it went on for 9 days in total. The claims at issue before Justice Skarica were so extreme that this case was even covered by the Toronto Star here.
Ultimately, Justice Skarica concluded that he could not find any evidence to substantiate Ms. De Cruz Lee’s allegations of fraud, conspiracy and human trafficking against Mr. Lee and he was awarded with $53,000.00 from the proceeds of the sale of the home that he shared with the Applicant.
Notwithstanding the fact that Ms. De Cruz Lee was judgment proof, Justice Skarica ordered full indemnity costs against the Applicant in the amount of $34,674.05. According to Justice Skarica, this was a case for full indemnity costs because of Ms. De Cruz Lee’s unsubstantiated allegations of dishonesty, illegality and conspiracy which were advanced without merit.
In particular, Justice Skarica was passionate about the role of costs in civil proceedings,
“Self-represented litigants whose aim it is to protract court proceedings to force the other side to expend significant resources on legal costs due to scurrilous allegations that are without any evidentiary foundation and are entirely irrelevant to the issue before the Court will meet the hammer of a cost’s award. In our resource strapped court system, there must be deterrence against such conduct that not only penalises the opposing party but also penalises those litigants who have genuine claims to bring before a court but must have their justice delayed due to Court time being spent on this type of litigation.”
Have a great day everyone and thanks for reading!
Some say our legal system is for the rich or the poor but not for those in between. Now there is a service that fills the gap by helping people in need of legal expertise whose income is too high to access legal aid and too low to afford standard legal fees.
JusticeNet, is a bilingual, not-for-profit service that promotes increased access to justice for low and moderate income Canadians. It is intended to complement public legal aid and pro bono programs and is available to anyone living in Canada who has a net family income under $59,000 and is experiencing financial difficulties. Reduced fees are calculated on a sliding scale which takes into account the number of individuals supported and amount of income from all sources.
The legal professionals found on the JusticeNet site have agreed to devote a portion of their practice to qualifying clients at reduced fees. Members of the public can find a participating lawyer by entering their location and the area of law in which they need assistance into a simple search box.
For lawyers, participation in JusticeNet provides an opportunity to take a leadership role in bridging the access to justice gap while enhancing their professional reputation. Accepting a JusticeNet case is voluntary and is not intended to interfere with the lawyer’s existing practice or regular rates, but rather moderately lowers hourly fees on a portion of his or her practice. Lawyers control the number of clients they accept and can change their availability status at any time.
Access to justice is certainly a cause worth reflecting on as we approach a brand new year.
Sharon Davis – Click here for more information on Sharon Davis.
"Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law." – Mr. Justice Joseph Quinn as quoted in the Globe and Mail.
Until that day, the fighting parents who appeared before Mr. Justice Quinn have been barred from court unless they obtain special leave. Looking at the context, it’s hard to argue they did not earn it: 25 court orders from 12 different judges over 7 years, three contempt motions, one suspended sentence, 12 different lawyers, 2000 pages of court filings.
An apparent lack of respect for the rulings of the Court by both litigants was a factor in this extraordinary Order. As Mr. Justice Quinn is quoted, "[b]oth sides have shown an inability to abide by court orders such that their access to this court should be restricted by the requirement to obtain leave."
Mr. Justice Quinn is further quoted as saying "[t]he parties have gorged on court resources as if the legal system were their private banquet table. It must not happen again,". It is easy to forget that courts are very expensive operations: rent, upkeep and salaries. An hour before a judge in court is not cheap for society, whether or not the litigants are represented by lawyers. As a purely editorial comment, it is heartening to see principled recognition of this fact.
The father, perhaps unsurprisingly given the reported facts, is apparently considering an appeal.
Enjoy the weekend,
listen to The Ontario Civil Justice Reform Project
This week on Hull on Estates, Chris and Justin discuss the Ontario Civil Justice Reform Project and the steps being taken by Mr. Justice Colter Osbourne and Attorney General Michael Bryant.