Erosion of family assets in ligitation not `just,' says top jurist

Tracey Tyler
LEGAL AFFAIRS REPORTER

 

Middle-class Canadians who aren't willing to mortgage their homes or gamble their life savings to pay for help with their legal problems face the "grim" choice of becoming their own lawyers or giving up on justice altogether, says Chief Justice Beverley McLachlin.

The "just society" Canadians have come to expect includes the ability to turn to the legal system, McLachlin says in a speech to be delivered in Toronto today to the Empire Club of Canada.

But when Canadians are forced to "use up the family assets" in litigation, justice is merely an illusion, she suggests in an advance text of her remarks.

"A person injured by the wrongful act of another may decide not to pursue compensation," says McLachlin. "A parent seeking custody of, or access to the children of a broken relationship may decide he or she cannot afford to carry on the struggle – sometimes to the detriment not only of the parent but the children.

"When couples split up, assets that should go to the care of the children are used up in litigation; the family's financial resources are dissipated. Such outcomes can only with great difficulty be called `just.'"

Meanwhile, those representing themselves impose "a burden on the courts" and cause "their own special forms of injustice," McLachlin says.

Unrepresented litigants can face insurmountable hurdles trying to present their cases and judges who try to help them run the risk of appearing to favour one side, she says.

As the case wears on, the costs to the opposing party – and the public – may rise. Meanwhile, judges are getting "stressed and burned out" from dealing with unrepresented litigants, putting further pressures on the justice system, McLachlin says in the speech.

While some "modest progress" is being made to improve the situation, through organized pro bono programs for example, much more needs to be done to give ordinary Canadians genuine access to the justice system, she says.

"The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve," she says.

McLachlin also says many cases drag on too long, making the courts an unrealistic option.

"Whether the litigation has to do with a business dispute or a family matter, people need prompt resolution so they can get on with their lives. Often they cannot wait for years for an answer.

"People look for alternatives. Or they simply give up on justice."

While courts have promoted mediation and arbitration as alternatives, "the fact is, some cases should go to court" because they raise issues critical to the development of the law, McLachlin said.

One bright spot is that criminal and civil appeals in Ontario are being heard more quickly.

But criminal trial delays remain an issue, with often "incalculable" personal and social costs to those involved, including long periods of pre-trial incarceration for an accused.

Then there's society in general. "As the delay increases, swift, predictable justice, which is the most powerful deterrent of crime, vanishes."