You do not have to be represented by a lawyer, except in certain situations. You are entitled to represent yourself in a separation case, as in any other type of case.
However, people who can afford to pay a lawyer often choose to be represented by a lawyer. Legal proceedings can be very complicated for someone who has little knowledge of law and mistakes can have serious consequences. Among those who cannot afford to hire a lawyer, only the most impoverished are entitled to legal aid. Others must look for other solutions.
In this article, Éducaloi explains the ins and outs of legal representation.
What is the lawyer’s role in family matters?
A lawyer’s first task is to advise you. Once your lawyer has evaluated your situation, she can make recommendations on what to do, how to act or not to act, and what proceedings to start.
Your lawyer can also represent you in court. She may also negotiate directly with your spouse or his lawyer.
The parents or the court may sometimes appoint a lawyer to represent the children. Under certain conditions, a child himself may decide to have his own lawyer.
How do I find a lawyer?
You probably know at least one person who has already experienced what you’re currently going through. It can be a good idea to check with this person if she can refer you to the lawyer who represented her. If you qualify for legal aid (see the following question), you will be assigned a lawyer from the legal aid office closest to your home. You can also choose to be represented by another lawyer who accepts legal aid mandates.
Referral services are offered through various associations or groups. For example, the Bar of Montreal has a list of lawyers willing to meet with a client at a fixed rate for the first thirty minutes. The Bar of Quebec offers a referral service that can help you locate a lawyer in your area. You can also use search tools such as the telephone book or the Internet.
When you make your first appointment, ask the lawyer if she is familiar with family law and find out what she charges, at least for the first meeting.
Lastly, you should know that you are entitled to change your lawyer for any reason whatsoever at any stage of the proceedings. By the same token, a lawyer can refuse to represent you, even if you have been referred to her by an organization or group.
What should I do if I want to hire a lawyer, but don’t have enough money?
If you have little or no income, the first thing you can do is to contact your local legal aid office and find out if you qualify for legal aid. Consult the telephone book or the website of the Commission des services juridiques for the telephone number of the legal aid office closest to you.
During your first meeting, you will meet a lawyer who will evaluate your financial situation and inform you whether or not you are eligible for the free services offered by the government, and if so, whether or not you will have to contribute something. A legalegal aid lawyer can represent you in court if necessary, unless you prefer to be represented by a lawyer in private practice who accepts legal aid mandates.
To get free legal aid, the
- assets (e.g., a home) and
- money on hand (e.g., bank accounts)
of an individual or a family must be under limits set by the government. You can find the exact limits on the website of the Commission des services juridiques.
However, people who are getting financial help under a “last resort” government program might be able to get free legal aid even if they are over these limits.
Also, if you are over the limits but still under maximum amounts set by the government, you might be able to get legal aid, but you will have to pay a small part of the costs.
For more information on legal aid, consult the website of the Commission des services juridiques.
If you do not qualify for legal aid, you will have to contact a lawyer in private practice.
Finally, if the case involves a family law issue, your lawyer can sometimes ask the court for a “provision for costs”. This means that the judge orders one of the people involved in the case to pay money to cover the other person’s lawyer’s fees and other legal costs.
How much does a lawyer in private practice cost?
Most lawyers in private practice charge an hourly rate (for example, $150 per hour), based on various criteria, including:
- the lawyer’s professional experience;
- her specific qualifications in the field;
- the complexity of the file.
A study conducted on private practice lawyers in 2003 found that their hourly rates vary on average between $75 and $300 per hour. More than a third of the lawyers surveyed charged between $100 and $150 per hour.
Whenever a lawyer works on a client’s file, she records the amount of time spent so that it can be billed. Telephone calls with the client and the other spouse’s lawyer, drafting procedures, studying the file, correspondence and legal research (previous court decisions), etc., will be billed in addition to meetings with the client and time spent in court. As a general rule, lawyer fees are subject to GST and QST, which will be added to the client’s bill. Also, keep in mind that the fees do not include court costs, such as the fee for opening a file at court or costs related to experts.
A lawyer will often ask the client to pay a deposit (for example, $1500), to cover court costs and a portion of his own fees, and to pay additional amounts as needed.
In some cases, a lawyer may agree to represent someone for a set price covering all his services. But not many lawyers will do this, unless it is a very easy case or the spouses agree on everything concerning their separation.
Lastly, it is a good idea to make sure that any fee agreement you reach with your lawyer is in writing and signed by both you and your lawyer. You should keep a copy of this agreement.
How can I minimize the costs of my separation and divorce, including lawyer’s fees?
First off, you should prepare for every meeting with your lawyer. Any questions you may have for your lawyer, as well as any answers you receive, should be written down immediately or shortly after your meeting. Your lawyer will also ask you to provide various documents. It is a good idea for you to arrange them in order and to make photocopies, one for yourself and one to give to the lawyer along with the originals.
You should also be as receptive and attentive as possible when you meet with your lawyer. This way, you can avoid having to call your lawyer for explanations you have already received. Don’t forget your lawyer will bill you for every telephone conversation you have!
Some steps in the legal process may not be compulsory in many cases. Ask your lawyer for more information, so you don’t pay unnecessary costs.
You can enter family mediation if your spouse agrees, and if spousal abuse is not an issue. Even if you can’t settle all the questions raised by your separation, a partial agreement on certain issues can save you a lot in court costs and lawyers’ fees.
Finally, you should try to be realistic, open-minded, and seriously consider your lawyer’s recommendations.
Can I give a lawyer a partial mandate of representation?
Yes. A person does not have to give a lawyer a complete mandate of representation, going from A to Z. She can choose to ask for some services that meet her needs and suit her financial means. For example, she can ask a lawyer to give her advice about her file and to come up with relevant legal arguments. She can then plead these arguments herself in court.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.