By: Kathryn Marshall
Contingency fee arrangements, a.ka. the lawyer only gets paid if the legal action is successful, are an important part of access to justice. They allow people to hire a lawyer when they do not have the funds in hand to pay the retainers and fees normally required by lawyers. These types are payment arrangements are very common in civil litigation such as personal injury suits where successful litigants are awarded damages.
However, in family law in Ontario, contingency fee payment agreements are not permitted (also the case in criminal law matters). The reasoning behind this is explained by Brendan Crawley, spokesperson for the Ministry of the Attorney General, who told the Toronto Star that the ban is in place to prevent “inappropriate share of often scarce family resources.”
Unlike in personal injury matters, the pool of money that a lawyer would get paid from in a family law contingency agreement would be the families’ own nest egg. Understandably, this creates a great deal of concern, especially where there are children and other dependents involved.
However, according to lawyer Stephen Durbin from Durbin & Associates, the ban is prejudicial to stay at home moms who may not have the same resources as their ex-partners to pay for family legal proceedings. The result can often be that women are forced to represent themselves in court, making it very difficult for them.
Ontario is the only jurisdiction in Canada with this ban, and Durbin, along with a group of other Ontario lawyers, have written a letter to the Ontario Government asking that the ban be lifted.
Their hope is to level the playing field and allow women greater access to justice when going through a family legal matter.
In some jurisdictions such as British Columbia where contingency fee arrangements in family law are permitted, court approval must first be granted to have this type of arrangement. Perhaps Ontario should institute the same system. This would allow for greater access to justice for all while also adding a level of protection to ensure these types of fee arrangements are not used inappropriately.