Law Times

www.lawtimesnews.com Page 2 March 31, 2008 / Law TiMes NEWS Shortage creates two-tier system provincial and federal govern- ments and Ontario's chief jus- tices to hammer out an "imme- diate crisis-management plan" to address the judicial shortage in family court. Mamo tells Law Times the shortage is especially acute and family courts are "crucially un- der-resourced" in the swelling urban centres that stretch from Oshawa-Whitby to Barrie, and adds Ottawa alone requires at least three to four additional judges for its Family Court. He says the shortage is cre- ating a two-tier system — with many parents choosing the costly alternative of private me- diation and arbitration instead of the public court system — because of the delay in settling in front of a judge. "A lot of cases are settling, not because they think it is a just re- sult, not because they think it's a provident resolution of the is- sues, but simply to get it done; they just can't continue to fester in the system," Mamo says. "What's happening is people are going to senior practitioners who will charge $250, $400, $500 an hour to do mediation," he says. "The courts are an insti- tution of justice," he says. "Access to justice means access to justice that's meaningful, without delay, with the least amount of costs and with judges who are knowl- edgeable sitting on the bench." Estranged parents who can't afford those rates must stay in court by relying on legal aid or representing themselves, which clogs the court even more as judges take time to assist clients who represent themselves. Gerald Yemensky, a family lawyer in Ottawa who specializes in mediation, agrees the family court system is in desperate need of the kind of attention the fed- eral bill failed to devote to it. "I can tell you that the sys- tem is broken," Yemensky tells Law Times. He says it can take estranged parents up to six weeks just to reach the stage of a case confer- ence in Ottawa. "If you had a relatively urgent situation, say for example that someone has left with the kids but they're still in town, they're just not letting the other par- ent see them, it could be two to three months at a minimum before that issue was addressed, before you reach the judge," he says. "To get to a trial, it could take at least a couple of years." Mamo says he is perplexed by the speed at which the judge bill sailed through the Com- mons, and he questions why the government did not seek advice about determining how the judicial complement should be increased. "Everyone's afraid of crunch- ing the numbers, and I'm not sure why," he says. "What's more fundamental to our system, our democracy, than access to jus- tice? Without that system, we really have anarchy." He says the government has failed to come to the aid of those who need it most — the chil- dren of broken marriages. "The reality is when you look at the number of children that come from separated families, and they're innocents in all of this, we need to have a system that is good for them, and their parents need to have a way of re- solving issues," he says. Baker tells Law Times sena- tors are wary when they re- ceive legislation that is rushed through the Commons with no scrutiny, adding the Senate legal and constitutional affairs committee will likely invite all provincial attorneys general to hearings, and "anyone else who wants to come." Mamo says he believes the federal government ignored fam- ily court because of arch-conser- vative elements in Prime Minister Stephen Harper's party who do not want to promote divorce. "They really have no inter- est in promoting the family [court] agenda. It's pretty obvi- ous," he says. "They want what they call the 'traditional intact family,'" he says. "But you can't ignore [di- vorce], it's a reality of the 21st century." 4Students, one of five publications in CLB Media's legal group, requires an energetic Managing Editor to drive the publication. Designed for law school students, with valuable information on the profession, 4Students is delivered to 9,000 law students at 22 different schools throughout Canada twice a year. In addition to working on a variety of projects in the legal group, this position is responsible for overseeing 4Students editorial content, writing articles, enhancing online offerings and building relationships with students and universities to make the publication a more relevant part of the law school culture. With at least three years of business journalism experience, or a JD/ LLB Degree with some writing experience, the successful candidate will be an innovative and outgoing individual who thrives on deliv- ering high quality content under deadline. http://www.clbmedia.ca/index.php/Career-Opportunities/ Managing-Editor-Legal-Group.html More details and application questionnaire can be found on our website at Managing Editor, Legal Group Marketplace To advertise call 905-841-6481 COUNSELING Dr. Valentin Shulman: Helping legal professionals to overcome depression and stress since 1989. Individual sessions, telephone coaching. Call (416) 766-6185. jobsinlaw.ca jobsinlaw.ca Continued from page 1 Gerald Yemensky says in Ottwa it can take up to six weeks just to reach a case conference. LT Reaction 'universally sympathetic,' says Elliott issue was not foreseen by any of the parties" when the fee was approved in 2004. "Indeed, it became an issue very late in the day in the history of these proceedings." Elliott says they will appeal the decision. "I hope that the Court of Appeal will understand the tremendous negative ramifications for access to justice if this is sustained," says Elliott, adding that the Court Challenges Program has been cancelled and that the Supreme Court in the Little Sisters case said, "It's virtually impossible to get advance costs. "There aren't a whole lot of options for minority groups who are denied their rights to get access to the courts, and class actions are the last best hope for them. If the message is that lawyers who succeed in constitutional class actions are still not going to get paid, then I don't think we're going to see many." In her approval order for the fee, Macdonald noted that a class action was the only way for the claim to move ahead: "Individual class members could not afford to mount a legal challenge on their own to obtain CPP survivor's pension." But Macdonald disagreed with the suggestion the ruling would lead to a chill, writing: "I am not persuaded that this result will deter future class actions or frustrate the access to justice principles embodied in the CPA. While I am sympathetic to [the group of class action lawyers'] position and the possible difficulties it will face in collecting the fees it deserves, it also seems prudent to suggest that future class counsel confirm that the s. 32(3) charge is available and not negated by other legisla- tion such as s. 65 of the CPP." Crown attorney Paul Vickery says it was neces- sary to protect s. 65 of the CPP. "It's really a question of balancing the interests of the class counsel with the interests of the people who are entitled to claim the pensions," says Vickery. "In this case, protection of the people who are entitled to claim the pensions wins out, you could say." Elliott says the lawyers have met with Macdonald to "devise something that, while less effective, may provide some results and some solutions to the problem." But he says the lawyers' main concern is the government's withholding of "some or all" pay- ments to class members until the issue is resolved. "I find that position legally unjustifiable and morally reprehensible. It's the first time, in my recall, that someone has received an award from the Supreme Court of Canada and the govern- ment has elected not to comply with it." Dimitri Lascaris, a class action lawyer with Siskind Cromarty Ivey & Dowler LLP, says the situ- ation should serve as a caution. "This drives home how risky a practice area this is. I think sometimes the community of defendants out there tend to understate the level of risk that we as class counsel have to assume in prosecuting these cases. If anyone needed a reminder of how significant and real those risks are, one can hardly imagine a more potent reminder than this." He says lawyers will now have to look beyond the Class Proceedings Act and the Rules of Professional Responsibility when drafting retainer agreements. "I don't think most law firms typically look beyond the procedural rules and ethical rules gov- erning the conduct of class action lawyers in deter- mining what terms of a retainer may or may not be enforceable," he says. "But I think now that's going to have to occur. We're going to have to look at the underlying legislation upon which the claims are based to ascertain whether there's anything within that legislation which could potentially pose an impediment to our being fairly compensated." "The one small positive note in all of this gloom is that it's been very gratifying to me, the reaction I've had from others. Most people don't think much of lawyers and they think even less of lawyers' fees. But the reaction I've had to this story has been universally sympathetic. Most average people I run into don't understand how a lawyer can win a case and then be denied payment. It makes no sense to them." Continued from page 1 LT

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