Could Your Family Court Fees Be Unconstitutional?

October 16, 2013
Ron Shulman

Article written by Ron Shulman

People often complain about the high overall cost of litigation – including legal fees, funding the individual steps in a proceeding, and court fees.  It all begs the question of whether obtaining justice has become too expensive for the average person.

In mid-September 2013 the Supreme Court of Canada formally agreed to examine the interesting question of whether court fees are so high, that they serve as a barrier to justice and are actually unconstitutional.

The whole matter started with a B.C. family law case called Vilardell v. Dunham, which involved a common-law couple embroiled in a custody dispute.  Prior to trial, the mother had applied for relief from the $3600 that she would otherwise owe for court hearing fees, claiming that they created an unreasonable hurdle to her having access to the legal system. The mother, for whom those fees represented about a month’s salary, relied on an “indigency exemption” for those who were considered “impoverished”.

That B.C. case – which was stayed by the court – has now spawned an action called Trial Lawyers Association of British Columbia v. Attorney General of British Columbia, and includes as parties the Canadian Bar Association and the West Coast Women’s Legal Education and Action Fund.

The Supreme Court of Canada has now agreed to take a look the issue, and assess whether high court hearing fees can be considered unconstitutional.   An earlier ruling In May of 2012 by the Supreme Court of British Columbia had determined that they are; a later court reversed that decision, holding that the existing rules relating to indigency could already be interpreted broadly, to go beyond merely the poor and include the “struggling middle class” as well.   However, that same court went on to observe that that the burden of paying high hearing fees currently falls most often on those who can least afford them – namely “women in family litigation, Aboriginal persons, those with disabilities, and recent immigrants.”  In order to address that concern, the Supreme Court of Canada will also be asked to specifically consider whether on policy grounds the indigency exemption should be given even broader scope.

Are court hearing fees out-of-reach for most people?  What are your thoughts?

Shulman Law Firm is a Toronto-area firm of experienced Family Lawyers who can provide practical advice and effective representation relating to the steps and processes involved in separating and getting divorced in Ontario.   Contact us to set up a consultation.