Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Northwest Territories

6. Unmet Needs in Family and Other Civil Matters

6. Unmet Needs in Family and Other Civil Matters

6.1 Historical and Current Family and Civil Legal Aid Coverage

Since June 1996 the Legal Services Branch has provided coverage to financially eligible persons for any civil or family matter except in the following instances or matters :

  • Defamation, wills, estates, incorporations, real estate transactions, realtor or representative actions, arbitrations or conciliations, and proceedings relating to elections.
  • Family matters where a lawyer does not provide a written opinion stating it is reasonable in the circumstances to proceed.
  • Divorce and/or division of property, if there are no associated issues of child/spousal support, custody or access.
  • Wrongful dismissal.
  • Claims for injuries or damages, except for disbursement costs where approved by the executive director.
  • Claims for injuries or damages where the expected recovery is less than $2000.

6.2 Statistical Data

Table 15 presents data on civil and family legal aid cases approved, while Table 16 summarizes civil and family cases in Territorial Court and Supreme Court. The tables can only loosely be compared because case categories are different; LSB cases may involve more than one application by the same person; and because court data is on a calendar basis totalling two and a half years, while legal aid data is based on three fiscal years. Nonetheless, the following general observations can be made:

  • Civil matters (as opposed to family) comprise only 4–5 percent of legal aid civil/family cases, while in Territorial Court they comprise 45–65 percent, and in Supreme Court 20–25 percent of such cases. This small proportion of civil cases flows from the exclusionary policies described in Section 6.1.
  • Legal aid would appear to be involved in the vast majority of child welfare cases that come before the courts.
  • Although family matter categories are exceedingly difficult to compare, a very rough estimate suggests that legal aid deals with approximately 50–75 percent of custody, child support and access cases heard in Supreme Court.

Table 15: Civil and Family Legal Aid Clients Served, by Case Type

6.3 Practical Limitations in the Delivery of Family and Civil Legal Aid

There is an overwhelming consensus that there is a drastic shortage of lawyers in the Northwest Territories who are willing to practise family law. The few family law lawyers live and practise in Yellowknife, except for one staff lawyer in Inuvik. This lack of family law lawyers sends ripple effects throughout the system that seriously impact the quality of service. The lack of family law lawyers is general to the justice system in the Northwest Territories, not specific to the legal aid system. However, coupled with the significantly lower fees that the Legal Services Board can afford to pay (approximately half that charged by lawyers in private practice), this lack of supply is disproportionately felt by the legal aid system.

Table 16: Civil and Family Cases by Year in all NWT Courts

A large majority of respondents in the legal profession stated that family law in the Northwest Territories is perceived as an unrewarding type of practice because of the emotional, “messy” and acrimonious nature of the cases, which not only embroils the parties themselves but threatens relations between counsel, and even between bench and counsel. While this dynamic may also exist in some measure in southern jurisdictions, the impacts are felt even more strongly in a small legal community such as Yellowknife.

The fact that family cases are driven by affidavits and applications increases overhead costs for word-processing staff and, consequently, for office space. Unlike private lawyers who are able to do criminal law from an in-home office using a part-time secretary, family law lawyers generally require a full-time secretary and separate office space. In legal aid cases, criminal work is thus more remunerative for the private bar than civil.

Clients often don't keep records necessary for their case, thus requiring more contact time on the part of the lawyer simply to gather information. Furthermore, communications with clients are often complicated. The language of affidavits and other documents used in family matters is often difficult for clients to understand, and requires more time for lawyers to explain.

The fact that family cases are driven by affidavits and applications also tends to prolong family law cases, especially in circuit communities. Clients are required to sign documents, which is often delayed until the lawyer is in town on circuit. Some documents require waiting periods (e.g., an originating notice for child support entails a 30-day notice period). If the required waiting period does not coincide with the circuit court dates, delays are prolonged.

6.4 Resulting Unmet Needs

The main results of these practical limitations are perceived to be:

  • Major delays for clients in finding a lawyer, if they are able to find one at all. This has a variety of subsidiary impacts. For example, transition house respondents said that they often could not offer support to clients in relation to their case because the client had not found a lawyer by the time the client's six-week maximum stay was over. Several examples were given of litigants appearing unrepresented in court because they could not find a family lawyer, even after more than 20 attempts. In child protection cases, Aboriginal clients will often just give up because they do not believe they will get help. Many respondents said that the impact on people's lives in civil cases is just as significant as potential incarceration in criminal cases, but the system is felt to be far less responsive.
  • The backlog of family cases handled by the Legal Services Board in Yellowknife is estimated to be eight months long. In the focus group, addressing this backlog was identified as the highest rated need.
  • The perception among many clients is that lawyers don't care about the client's case or have their interests fully at heart. These perceptions were usually articulated by social agency advocates for clients. Many respondents acknowledged that the civil legal aid system is seriously under-resourced and that lawyers are thus overworked. Because of that, they did not blame the lawyers for their attitudes, but felt that, because of their workload, they had become desensitized to clients; did not have adequate time to prepare their case and/or listen to the client; and were unwilling to mount serious challenges in child protection or child custody cases. This may have particular implications for women, to the extent that they are the primary caretakers and parties in such cases.

6.5 Strategies to Respond to Needs

Several strategies were advanced, the first two of which are beyond the direct purview of the Legal Services Board:

  • Explore more fully a collaborative family law approach. A workshop on this topic was recently held in Yellowknife and attracted reasonable interest. Apart from what are perceived as the intrinsic merits of a more collaborative approach for clients, some respondents felt that the approach might make family law more attractive to practitioners and, thus, increase the pool of lawyers available for civil legal aid work. Other respondents simply suggested mediation as an approach. Two respondents stated that Aboriginal clients are culturally more oriented toward collective than individual rights and are less likely to engage in a process of litigating resolution of family cases. Although they did not specifically make a connection between this observation and collaborative family law, there may be a more comfortable fit for Aboriginal clients with this orientation to resolution of family law matters. All collaborative or mediated approaches would need to be highly cognizant of power relations between the parties.
  • Develop a Family Court. This would (1) help ensure that family cases receive more immediate and full attention and not be “bumped” by criminal cases; (2) develop expertise on the bench and among Crown and defence counsel; and (3) likely lead to the development of forms, procedures and innovations that would more effectively deal with the volatility and emotional context of family cases.
  • More outreach to assist clients. Criminal cases necessarily bring clients to court and to the attention of legal aid. Civil/family cases depend to a greater extent on the knowledge and initiative of the client and are, therefore, more dependent on the client's comfort level with initiating contact. Many of the social agency respondents felt that more effective service could be provided in settings less intimidating than the formal office building in which the Legal Services Board operates. Outreach to social service settings, both for Aboriginals and non-Aboriginals, could provide information to clients in civil and family matters. Another respondent felt that the Yellowknife office should move to a storefront location that would be less intimidating to Aboriginal clients. Two respondents noted that Aboriginal clients tend not to resort to anger and a “fighting stance” when they lose their children in protection cases, so an accessible setting is essential to provide a margin of comfort in which they can begin to explore and assert their legal rights.
  • In the focus group it was emphasized that in order to do effective community outreach, the LSB may have to take a more activist role in urging collaborative arrangements with other government departments or community agencies. For example, an effective clinic approach to family law issues might involve social workers or social work paralegals working together with Courtworkers and/or legal aid lawyers.
  • Increase the tariff for family law cases.
  • Hire an additional staff lawyer.
  • Simplify billing procedures for family law cases, which several respondents claimed were unnecessarily bureaucratic and time-consuming compared to criminal case invoicing.
  • Increase PLEI directed to family law matters.
  • Contract with family law lawyers from outside the NWT. This is currently being done by the LSB on a trial basis.
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