Legal crisis looms
Family law lawyers scramble with more than 100 backlogged cases
Yellowknife ( May 17/00) - A shortage of family law practitioners has created a crisis for the legal system in Yellowknife.
The problem isn't a new one. Some practitioners say signs of the current crisis could be seen years ago, but solutions are hard to find and the reasons hard to pin-point.
Others believe lawyers aren't drawn to practice family law because it's not as profitable as other types of law. Some firms in larger centres in the south admit they don't deal with family law cases mainly because it isn't lucrative. They also say it is too hands-on, emotionally draining and assets are potentially tied up for too long to make it worth it from a business standpoint.
As well as being a lawyer, practitioners also wear the hat of a social worker, family counsellor and deal with a lot of emotional baggage lugged into their offices by the clients they serve.
"I'm not going to make the kind of income that a Bay Street corporate lawyer makes," said Yellowknife family lawyer Elaine Keenan-Bengts.
"It's not the kind of practice that will make you rich, it's the kind of practice you do because that's the kind of work you like doing."
Keenan-Bengts has been practising family law all of her working career. Her total case load consists of about 70 per cent family files. She said while the problem is not isolated to the North, practitioners North of 60 are certainly feeling the effects more than anywhere else in Canada.
She estimates there are about 60 lawyers in Yellowknife, four who do a majority of family law work and about 10 more that do some.
Currently legal services has 123 backlogged family cases.
"I would say the crisis has been fairly severe here in the last year but you could see signs of it maybe 18 months or two years ago," Keenan-Bengts said, adding, "it has only been fairly recently that there's been a severe crisis. There have been other times that there was a backlog but they've always been caught up very quickly -- that's just the nature of the game."
Keenan-Bengts noted that two years ago legal services never had to go to the bar and ask lawyers to take on files.
She said it happened once and the backlog was quickly cleared up.
In the last six to eight months she said legal aid has been asking people to go out and find their own lawyers in an emergency situation and then they'd talk to the client about arranging fees.
Executive director of legal services Greg Nearing agrees there is a real problem and blames it on a shortage of lawyers.
"The money is not the major reason -- it might be a factor -- but it's not the root of the problem," Nearing said. "The root of the problem is we don't have enough lawyers."
Nearing supports Keenan-Bengts' reasoning in that regard but adds the shortage is more than a cyclical event due to an overall lawyer shortage in the south.
"It seems that younger lawyers don't seem to be wanting to do this kind of work anymore," he said.
"It's a very difficult area of work because people are at their very worst, their lives have just been ruptured, their emotions are raw and it's emotionally draining work. Fewer people go into it and as a result we are not able to offer the kind of service we'd like.
"It may be part of a cycle but I doubt it."
Lawyers working on family cases through legal aid are paid between $40 and $102 per hour depending on their experience, far less than an articling student under an experienced lawyer would charge clients walking in their door. Civil and criminal legal aid files are paid the same and there isn't a huge shortage in the criminal area.
Although Keenan-Bengts said, "that's one of the reasons many lawyers are choosing not to do legal aid," she agrees with Nearing that it's more a problem about being overloaded.
"What's happened is that these lawyers are now saturated and can't take on any more work without affecting the quality of service they provide," Nearing said.
He explained that federal, provincial and territorial governments are raising the issue, saying the area is underfunded.
But Nearing says more funding should not go toward increasing fees but toward implementing new programs to alleviate the stresses of waiting.
Currently legal services sometimes pays a private mediator to help in divorce cases they feel may not require two lawyers.
Having a third party in the department look at two sides in the same case cuts down time as well. In a divorce case, for example, where each party is using a legal aid lawyer, if a third party is able to look at both files he or she may find an avenue in which to speed up the process.
As well, a positive parenting program, which educates litigants about court processes, is being offered as a pilot project.
"This allows them opportunities to get hard information about the court processes and how it works," Nearing said.
"But the real focus is the impact this will have on the family unit. So far the feedback we've gotten is very positive."
Although the number of legal aid files backlogged is a heavy burden on those waiting and on those administering them, Keenan-Bengts and Nearing both say lawyers in this area feel it's their duty to take on legal aid cases.
It is not mandatory to be on the panel of lawyers legal aid can draw from and Nearing doesn't see a reason why it should be.
He said lawyers here have always exhibited a sense of responsibility in this community.
"I think it's hard for anyone to find a lawyer whether you are on legal aid or otherwise. It's not just a legal aid problem," added Keenan-Bengts.
"But most lawyers in this jurisdiction feel a duty to do legal aid work ... and feel very guilty when we have to say no."