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Contingency fees in family law

Should family law lawyers be allowed to take on cases on a contingency basis? Many people are familiar with the refrain of personal injury lawyers: “you don’t pay unless we win your case.”

In the realm of personal injury law, if you’re suing someone because of injuries you’ve sustained in a car accident, for example, your lawyer will likely charge you a legal fee on a contingency basis. If the lawyer wins a substantial damages award on your behalf, you will agree that they are entitled to take a percentage of that award on account of their fees. This percentage will vary. The logic of contingency fees is that, since the lawyer assumes the risk of taking on a case without any guarantee that they will be successful in recovering an award for the client (whether through negotiation, or at trial), then the lawyer is entitled to be paid a premium if they do end up being successful.

A contingency fee arrangement isn’t permitted in family law cases in Ontario. Either a client has the funds in order to pay a lawyer a standard hourly rate to start litigation on their case, or they don’t.

As Stephen Durbin points out in a recent article, the ban on contingency fee arrangements in family law prevents many individuals from pursuing a family law case through the courts, particularly those who might be entitled to a significant settlement, but don’t have the means to fund litigation on their own behalf.

Other provinces do allow family lawyers to charge on a contingency-fee basis.

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