A group of Ontario lawyers is pressuring the province to drop its “archaic” ban on no-win, no-fee payment arrangements in family law cases.
Ontario is the only province that bans the payment plans — formally known as contingency fees — that mean the lawyer doesn’t get paid unless the client wins. It’s a tool to make legal help more accessible to people who would otherwise lack the funds.
Lawyer Stephen Durbin penned a letter to the province arguing that the “severely misguided” prohibition largely punishes women and creates a two-tiered justice system.
He says it forces disadvantaged parties to represent themselves in court, a major challenge for any person, especially an already-busy parent.
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“This is an anachronistic rule that unfairly marginalizes people,” he said. “A lot of these litigants are stay-at-home moms trying to get out of a bad marriage. Many of these people end up representing themselves in court and frequently become victims of an overburdened family law system.”
He argues that the law penalizes women in particular since men tend to control the purse strings in many relationships, so have greater means to retain legal help.
“This province has no excuse for not allowing contingency fees, when the rest of the country does. Ontario is way behind the times,” he said.
Ontario specifically bans contingency fees in criminal, quasi-criminal (like highway traffic violations) and family law cases.
Durbin does oversimplify things by saying “the rest of the country” allows contingency fees. While other provinces don’t have Ontario’s comprehensive ban, many still have limitations.
The B.C. law society doesn’t permit them in family law cases involving child custody or access. New Brunswick, Saskatchewan, and the Yukon courts must okay a contingency-fee agreement.
Many provinces that allow contingency fees also impose a maximum percentage that can vary according to the type of case and whether it goes to appeal.