Middle-class injustice: Too wealthy for legal aid, too pinched for 'average' lawyers' fees

Joanne Ryan and her daughter fall in the legal grey zone that encompasses Canada’s working poor and middle class: they’re too “rich” to qualify for legal aid, but can’t afford the $365 per hour the average lawyer charges.

An 'average' 5-day civil trial cost $56K last year, beyond the reach of most average people

The average five-day criminal trial cost more than $56,000 last year, something that's beyond the reach of many middle-class families, experts say. (Reuters)

Joanne Ryan filled her fridge by using the food bank, as she watched her money eaten by a seven-year legal battle for spousal and custody support that cost her $100,000.

Ryan and her daughter fall into the legal grey zone that encompasses Canada's working poor and middle class. They're too "rich" to qualify for legal aid, but too strapped to pay $365 an hour for a lawyer, the average rate last year, according to a countrywide survey in Canadian Lawyer Magazine.

What's more, the longer the case, the more expensive it gets. The average five-day civil trial cost $56,439, the survey found — or roughly $16,000 more than the median take-home pay in a single-parent family.

And although Ottawa and the provinces fund legal aid services, Ontario's single parents must make less than $20,994 to qualify for a certificate to cover lawyer's fees. They can get partial funding if their income stays below $25,282.

"So you practically have to be on the streets with your kids to get legal aid," Ryan said in an interview. "Between legal aid and what people can afford, there's a huge, huge gap."

Eligibility frozen for 20 years

It's a gap that swallowed more than a million people since Ontario changed its legal aid eligibility criteria in the mid-1990s.

The province rolled back its legal aid threshold for single people to $10,800, a figure that would not change until 2015. Those making less than $12,500 could qualify for partial coverage.

The rollback coupled with "the ravages of inflation" eliminated half of the two million people eligible for publicly-funded lawyers, David McKillop, Legal Aid Ontario's vice-president of policy and research, said in an interview.

"So anyone earning $13,000, $14,000 was told that they had the financial resources to be able to hire their own private lawyer," McKillop said. "It's ludicrous … these people barely have enough money to put food on the table and pay their rent — they definitely don't have enough money to pay a lawyer."

Ryan agrees. After five years spent in family court, she says she ran out of money, and still didn't qualify for legal aid funding.

In her case, though, she came across JusticeNet, a non-profit group that connects legal professionals willing to offer lower fees for  people who make less than $59,000 a year.

Co-founder Heidi Mottahedin launched the online directory officially in 2009, saying that her work as a professional mediator made her realize that the public system did not ensure access to a lawyer.

Defence lawyer Marie Henein, middle, cross-examines a witness at Jian Ghomeshi's sexual assault trial in February. (Alexandra Newbould/Canadian Press)

McKillop said that JusticeNet helps fills a gap in accessibility. But he said that Legal Aid Ontario will starting serving more people — after the province agreed to increase eligibility so that it matches low-income designations.

In 2015, Legal Aid Ontario saw its first increase in 20 years. But at $22,253 for a two-person family, as of April 1, 2016, the threshold for a legal certificate still falls about $7,000 below the 2013 low-income measure for single parents.

On the other end of the spectrum, people who can pay for top dollar are more likely to get a better outcome, says McGill University law professor Richard Janda, whether that's an acquittal, custody of their children, or more money in a lawsuit.

Look at the Jian Ghomeshi case, says Janda. "He is able to pay for someone who provided him with a … successful strategy for handling those proceedings and you might say that he was able to get a level of justice that he could pay for that other people would not have been able to."

Legal Aid has slowly begun increasing its eligibility threshold, but lawyers say that the working poor and middle class still don't have equal access to counsel. (CBC)

It's a level of justice that is often out of reach for those in Ontario Family Court, where 57 per cent of litigants did not even have a lawyer.

This actually costs the justice system, because staff have to explain processes to someone totally unfamiliar with them, says Sarah Lugtig, the chair of the Canadian Bar Association's access to justice committee.  

"People do better in court when they have legal representation, there's been research that's shown that very clearly," Lugtig said. "And it makes sense — the system is actually designed for lawyers, it's not designed for people."

'Designed for lawyers'

That's why the bar association has issued 31 recommendations that include calling for more federal funding for legal aid and allowing people to be represented by a paralegal or a law clerk where appropriate. It wants to see all of those changes come into effect by 2030.

You know the old adage: He who represents himself has a fool for a lawyer.- Joanne Ryan, former family court litigant

The Ontario government also launched a study last month that will look at ways to give paralegals, law clerks and law students standing in family court to cut down on the number of people without representation.

Ryan said she never considered going without a lawyer, because she didn't believe she could navigate on her own.

In 2014, she won custody of her daughter, spousal support and long-term child support to help pay for the 11-year-old's special needs.

"Would I have been able to advocate for myself in a way that the outcome would have been the same? I doubt it sincerely," she said. "You know the old adage: He who represents himself, has a fool for a lawyer."


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