Legal Aid, Courtworker, and Public Legal Education and Information Needs in the Yukon Territory: Final Report

6. Civil Legal Aid

6. Civil Legal Aid

6.1 Coverage of Civil and Family Matters

Until 2001, legal aid coverage in civil and family matters included:

  • Child protection proceedings.
  • Interim proceedings in cases of family breakdown where children are involved, resulting in issues of custody, access, child support, restraining orders and/or exclusive possession of the matrimonial home, and where:
    • there are no pre-existing orders of the court or other lawfully binding resolution; or
    • where the health or safety of a child or parent, or an established parent/child relationship is at risk.
  • Proceedings under the Mental Health Act.

As noted in Section 2.4, in response to the Operational Review in 2000, the YLSS has begun to fund selected family cases through to permanent orders, has implemented the Support Variation Maintenance Project, and funded some complex permanent wardship trials. At this stage, formal criteria have not been developed to clarify what types of family cases merit funding, and coverage is provided on a case-by-case basis. However, in general terms, approval has been extended to more difficult cases or cases where parties are entrenched in strong disagreement.

Of 380 family and civil legal aid applications in 2001-2002, 70 (18 percent) were refused. Of these refusals, 43 (61 percent) were for financial reasons, 22 (31 percent) were for coverage reasons, and five (7 percent) were on the basis of merit. There is thus a higher overall rate of refusals of civil/family applications than for criminal applications (as described in Section 2.4). Coverage refusals reflect the discretionary decisions that YLSS is making based on the difficulty of cases (see previous paragraph). Financial refusals are likely a reflection of applicants having at least some resources, whereas criminal applicants often have none.

6.2 Civil Data

It is even more difficult to align YLSS civil/family data with civil/family data from the court system than is the case with criminal case comparisons. This is due to the fact that case categories are defined differently, that YLSS "cases" may involve more than one application by the same person, and because court data is on a calendar basis and YLSS data is on a fiscal year basis. Nevertheless, if one eliminates small claims and non-family civil cases in Territorial and Supreme courts from Table 16, legal aid coverage, reflected in Table 17, would appear to be dealing with 65-80 percent of family cases heard in Territorial and Supreme courts.

Table 16
Civil and Family Cases per Year in All Yukon Courts
Court Level and Cases Type Year
1999 2000 2001 Jan 1 - June 30, 2002
Supreme Adoption 6 8 6 4
Child 38 39 55 24
Divorce 104 107 91 51
Family 24 12 9 3
Infant - 1 - -
Maintenance Enforcement 16 15 21 7
Other 383 349 356 145
Reciprocal Emforcement 2 6 5 3
Territorial
Child 5 8 6 1
Family - 6 3 2
Maintenance Enforcement 107 95 91 31
Other 21 44 33 12
Reciprocal Enforcement 2 5 2 2
Wardship 23 25 21 15
Appeals Court Other 17 20 28 7
Federal Other 2 3 7 -
Small Claims Other 225 224 227 80
All Courts 975 967 961 387

Notes:

  1. Source: Court Services, Department of Justice, YTG.
  2. These data do not include immigration cases.
  3. "Other" refers to non-family civil cases (e.g., bankruptcy, labour relations, probate, etc.).Since these are not covered by legal aid, they are simply presented as a single category.
  4. Frequency counts are based on cases initiated in the given year, but include cases that are closed in that or subsequent years, as well as cases ongoing as of June 30, 2002.
  5. It appears that the volume of civil and family cases will decrease for 2002. Projections for the entire year, based on these data, are 774 for the entire year, or 811, based on supplementary data, to October 8, 2002.

Table 17: Approved Family and Civil Legal Aid Cases

The data on YLSS civil coverage in Table 17 clearly reflects the coverage described in Section 5.1, with interim custody cases comprising the majority of cases (55-61 percent), wardship cases approximately 20 percent, and mental health cases approximately 9 percent of overall cases.

6.3 Practical Limitations on Family/Civil Delivery

Several practical limitations on effective delivery of family and civil legal aid were identified:

  • Supply of family law lawyers. Family law matters have two parties, both of whom sometimes require funding. YLSS has two offices in Whitehorse to help deal with the likelihood of conflict, but, nonetheless, 30-40 percent of family matters need to be referred to the private bar. Respondents claimed that the legal aid tariff pays lawyers half what they would earn in private practice, so there is not a large incentive to attract family bar members. At present there are only one or two members of the private bar who will take civil (family) legal aid cases.  
  • Cumbersome billing arrangements. Several respondents complained that YLSS's setting of ceilings for billings in regard to specific processes (e.g., initial interview, document preparation) places excessive administrative burdens on private lawyers who are invoicing for family legal aid work.  
  • One respondent felt that there is a financial disincentive to settle family cases without trial, as the time required to mediate a case is insufficiently remunerated.  
  • Legal profession respondents had an awareness of collaborative law practices, and this approach was discussed at a Law Society meeting in October 2002. The size of the Yukon bar may limit the adoption of this approach. Some respondents felt that if a collaborative law approach were used among key civil law practitioners, it could, ironically, necessitate bringing in a lawyer from outside the jurisdiction if a case needed to be litigated.  
  • Lack of resources. One private bar respondent claimed that wardship cases are "assessed to death" by the Department of Health and Social Services. YLSS has been unable to support the casework necessary to gather independent witnesses.  
  • Another respondent from the private bar felt the tariff payments were not commensurate with the labour-intensive preparation required in Mental Health Act cases.

6.4 Family and Civil Needs

While respondents uniformly acknowledged that progress had been made in funding some family cases through to final orders, many felt there were still family and civil needs that needed urgent attention.

  • Wider range of support for family orders. Current funding for final orders is only on selected cases involving children. Criteria need to be more clearly defined. Support should be given to financially eligible persons for divorce, spousal maintenance and division of assets.
  • Coverage for Family Violence Protection Act (FVPA) cases.   One respondent stated that 95 percent of battered women who would benefit from civil orders under the FVPA would meet legal aid financial eligibility guidelines, but there is no coverage. There is no emergency legal aid available to victims in the same way it is to the accused under the Act. Furthermore, although emergency legal aid is available to accused persons in criminal cases during extended holiday periods, it is not available for cases under the FVPA.  
  • Although small claims courts are relatively accessible by individuals requiring summary information and support, it is not feasible for the working poor to initiate claims in the $5000 to $20,000 range. The amount paid to a private lawyer would likely exceed the amount of the claim.  
  • A Whitehorse courtworker has in the past assisted unrepresented litigants with both family and civil processes, with some assistance from and referrals to YPLEA. However, criminal law demands have forced her to withdraw from this work. She feels there would be ample demand to warrant a full-time civil courtworker, if training were available. Several legal professionals felt that there was no reason, given appropriate training, why courtworkers should not undertake civil/family functions. YPLEA also provides information in family cases, as described in Section 9.0.

6.5 Delivery Strategies

Several strategies for more effective delivery of family/civil were discussed in the focus group. These included:

  • Funding custody, access and support issues to the final order stage. YLSS is currently doing this on a merit basis and will be able to continue doing so if the current YTG funding support continues.  
  • Storefront services combining some YPLEA information functions with advice functions under a supervising lawyer. This approach has been under active consideration and will likely be discussed further within YPLEA and/or YLSS, as described in Section 9.3.2.  
  • Co-ordinated family court. This type of court would likely make more efficient use of legal aid funds, but its implementation is outside the control of YLSS.  
  • Earlier legal aid intervention in child welfare cases. While earlier intervention could well lead to more effective assistance for clients, a modality for effecting earlier intervention has not been determined.
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