More than 80,000 people are unrepresented in family court proceedings in Ontario every year. You see many women who don’t have lawyers and, often, their former partner is also unrepresented. As we have discussed in the past, while the lack of legal representation is a challenge for any family court litigant, it raises particular issues for women fleeing abuse.
Women in this situation face heightened safety concerns. The case, especially when the opposing party engages in legal bullying, will take longer. The emotional wear and tear can lead women to agree to outcomes that are not what they are legally entitled to. Women may not present evidence that would assist the judge to make the best decision. Some women may become so overwhelmed or exhausted by the process that they return to the abuser.
Limited scope retainers / unbundled services
In recent years, some lawyers have changed the way they practice in order to better assist those who cannot afford full representation throughout their case by offering limited scope retainers or unbundled legal services. These two terms refer to essentially the same thing: the lawyer is retained by the client to provide legal services for some but not all of their legal issues. Legal Aid Ontario, in some cases, will provide certificate assistance in the same way.
For example, a woman may need to go to family court about a number of legal issues – custody and access, child support and property division – but cannot afford to pay for a lawyer to represent her on all of them (or LAO will not provide a certificate for all the issues). She may be able to find a lawyer who will unbundle their services and agree to be retained just on the custody and access issue (or LAO may provide her with a certificate for this one issue). The woman must then represent herself with respect to all the other issues she needs resolved.
There are obvious challenges with this approach: issues in family law do not always neatly compartmentalize themselves; there may be some trading back and forth (one party concedes on one issue in exchange for getting what they want on another); an abuser may take advantage of the fact that his former partner only has a lawyer for some of the issues and engage in legal bullying, and so on.
What is legal coaching?
More recently, a new way of addressing the needs of unrepresented litigants has entered the field: legal coaching.
Legal coaching allows a litigant to retain a lawyer to provide her with behind the scenes guidance and mentorship. The lawyer assists the client to develop strategies for her case, shares their knowledge and offers practical tools for the client to use. The lawyer can also provide tips about courtroom etiquette and decorum. The legal coach can offer assistance throughout the case on all issues or can provide that support at key moments in the family court process.
A lawyer who has been retained to provide legal coaching can offer advice, draft documents, review documents that have been drafted by the client as well as assist the client prepare for court appearances. In their role as legal coach, the lawyer can assist the client to assess the strengths and weaknesses of her own case as well as that of her ex-partner. The lawyer can also help the client set realistic goals and can do legal research for the client’s case.
Legal coaching can be empowering for the client, who may learn new skills as well as increase her confidence through her relationship with her lawyer. The lawyer/client relationship can be more of a partnership than is likely in a traditional retainer where the lawyer speaks for the client in the legal process. The goal is to maximize the client’s capacity to take on the next steps on her own.
Legal coaching is not legal representation: the legal coach does not go on the record for the client.
Legal coaching in Ontario
Legal coaching is a relatively new concept in Ontario, although some lawyers have been doing it informally for many years.
Windsor University Faculty of Law offered a credit course in legal coaching in 2017, which paired law students with unrepresented family court litigants. The students, in a clinic setting, offered their clients procedural information and guidance, assistance with document completion, prepared them for case conferences and mediation and provided emotional support. Get more information about this program.
One pilot training has been offered to lawyers interested in becoming legal coaches, but it is unclear whether training will be mandatory.
There is no doubt that legal coaching can be very helpful to clients who would otherwise be managing their family law case on their own. As always, though, there are special precautions for women leaving abusive relationships:
- Women should ensure that their legal coach is a lawyer, licensed and insured to practice family law in Ontario
- Their legal coach should have taken domestic violence training such as that offered by Luke’s Place or by Legal Aid Ontario
- Women should review the retainer agreement with their lawyer carefully to make sure it is explicit and clear about what responsibilities the lawyer is taking on and which will fall to the client
How can I support my client?
You can support a woman who is considering retaining a legal coach by:
- Supporting her to be clear and assertive with her lawyer
- Helping her organize the information about her case to take to her lawyer meetings
- Accompanying her to lawyer appointments to take notes about the lawyer’s advice and the woman’s tasks
- Debriefing with her after lawyer appointments
- Ensuring that her safety plan is updated to address key points in her case, especially situations that require her to be in direct contact with her ex-partner
- Providing her with emotional support
With a lawyer who has received domestic violence training, a good safety plan and your support, legal coaching has the potential to work well for the women we support.