Legal Aid Eligibility and Coverage in Canada

Inventory of Legal Aid Plans in Canada (continued)

Manitoba

Legal aid services have been available in Manitoba since the 1930s as a pro bono legal aid center[12]. By 1971, Manitoba had established a mixed judicare-staff system of legal aid. The Legal Aid Services Society of Manitoba was created in 1972, and it is the organization responsible for administering legal aid services in the province.

Legal Aid Manitoba exists to help people - individuals and groups - who need a lawyer but cannot afford to pay for one.

Financial Eligibility

Financial eligibility for legal aid is determined primarily through the use of financial guidelines and consideration of an applicant's assets and debts. However, if an applicant has any means or resources which would enable them to fund the legal action, the applicant may be deemed to be financially ineligible for legal aid. The income guidelines for eligibility are established using family income and family size.

Financial eligibility is defined by the Board of Directors and is not set out in the regulations of the Legal Aid Act. They are guidelines and as such, can be flexible.

An applicant who is on social assistance or in receipt of some form of income assistance (such as OAS or an income supplement) is considered to be eligible for legal aid without having to make a financial contribution towards their legal costs. If the applicant owns a home or property, legal aid may impose a charge on the land.

An applicant is eligible for legal aid in one of three ways. They may be eligible without having to pay anything if their income is at or below the "fully eligible" level. An applicant may be eligible with a "partial contribution," whereby they are asked to pay a fixed part of the costs of the case (an agreement to pay). Alternatively, an applicant may be required to pay the full costs of the case along with a program fee (expanded eligibility).

The Legal Aid Board of Manitoba has adopted the following guidelines, effective August 1, 2000:

Income Guidelines
Family size Gross Income
Fully Eligible Eligible Portial Contribution Eligible - Full Contribution
1 $14,000 $16,000 $23,000
2 $18,000 $20,000 $27,000
3 $23,000 $25,000 $31,000
4 $27,000 $29,000 $34,000
5 $31,000 $33,000 $37,000
6 $34,000 $36,000 $40,000
7+ $37,000 $39,000 $43,000
Expanded Eligibility through Contributions

Persons making more than the guidelines may still be eligible for legal aid. The plan takes into consideration other factors, including the following:

  • whether or not the applicant can retain counsel without having to dispose of their principal place of residence;
  • whether or not the applicant can retain counsel without having to dispose of assets necessary to maintain their livelihood;
  • the applicant's assets and liabilities;
  • the merit and quantum of the case;
  • the cost of the proceeding;
  • whether or not a reasonable person who had to pay a lawyer would spend the money to advance the case.

Applicants whose income exceeds the normal guidelines for a family of their size, but whose income does not exceed the next highest guideline, are eligible for a partial contribution. Applicants with an income that exceeds the guidelines for a partial contribution but is below the next highest level are eligible under the expanded eligibility program. In such a case, the applicant signs an agreement with the legal aid program to pay a certain amount in monthly instalments towards the costs of their legal services - usually between $50 and $100 per month.

Clients whose income slightly exceeds the regular eligibility guidelines may still be provided with legal services, but they must repay the entire cost to the plan. Under these "expanded eligibility" guidelines, the applicant is asked to repay the full amount that the legal aid program paid for the lawyer, plus a program fee of 25% of the legal aid costs of the case up to a maximum of $250. The applicant must sign an expanded eligibility contract which sets out the amount of the monthly payments. The client benefits by receiving a reduced rate on the lawyer's services. This program is aimed primarily at the working poor.

There is discretion in determining the amount of a partial contribution and the rate of repayment. Area directors ensure that the assessed amounts are reasonable in the light of the applicant's financial circumstances. They issue a certificate indicating that the person falls within the "Full Contribution Eligibility Category" under the current guidelines and that the person has agreed to pay the full costs of their legal aid services.

Family Definition

The definition of family is based on family size.

Income Definition

The guidelines use gross income which includes wages and salaries, tips, gratuities, bonuses, interest payments, annuities, pension income, rental income, and income from farming. Income excluded from eligibility calculations includes the child tax benefit, daycare and maintenance payments. Common-law relationships are treated as a family unit for the purposes of determining financial eligibility, for they are deemed to be parties living together as married in a relationship of some permanence, with an actual or reasonable expectation of some financial support or contribution.

Assets Test

There are a series of definitions about when and which assets can be used. All types of assets are assessed. Overall, the Legal Aid Society can request that any assets be liquidated as long as it does not cause hardship to the family. This means that Legal Aid Manitoba assesses the applicant's liabilities and expenses in the process.

Legal aid generally looks to the individual's family unit first for resources, including assets, to cover the cost of counsel for the individual and the family unit. Under some circumstances, assets of the extended family will also be considered, for example in cases where there was on-going support from the extended family or the individual's lifestyle is based on support from the extended family. An applicant's home, property and assets are assessed, and depending on the amount of equity, Legal Aid Manitoba may ask the applicant to liquidate the assets to cover their legal costs. It all depends on how "modest" the asset is considered to be. For example, $5,000 in liquid assets for an applicant on welfare is not considered to be modest, whereas an applicant's equity in their home that falls below $20,000 is considered to be modest.

Client Contributions

Applicants who are eligible for legal aid under the "fully eligible" category may be asked to contribute to their legal costs. This is assessed on a case-by-case basis. Directions to pay are required by the regulations and are supposed to be imposed automatically on every certificate.

Substantive Coverage

Applicants are granted legal aid if they are charged with an indictable offence and are financially eligible. If they are charged with a summary offence, applicant are provided with a lawyer only if there is a likelihood that they will go to jail or lose their job if convicted.

Criminal Appeals

Appeals by the Crown are covered only if the accused was eligible for legal aid coverage at the onset. Appeals by the accused are covered only if the accused has received a jail sentence and their case is considered to have merit.

Duty Counsel

Duty counsel services are available for civil and criminal matters and in most courts, although not necessarily in all rural areas. Private bar lawyers also provide services in a number of remote Aboriginal communities.

Legal Aid Manitoba also provides full service duty counsel in immigration matters, in disciplinary court at penal institutions, in Child and Family Services Courts, and for poverty law. Full service duty counsel - also called expanded duty counsel - provide complete legal aid to clients, including negotiating a release or an appropriate plea bargain with the Crown based on a thorough review of the particulars with the client. The service is the same as if a certificate had been issued and may include remand to another date if necessary, beyond a regular sitting of duty counsel. It does not include representation at a trial or a preliminary hearing and does not permit substantial disbursements. If a matter has to be sent for a hearing, or if a disbursement in excess of $125 is required, the client will have to apply to the area director for a certificate. The service covers criminal offences for which legal aid would not ordinarily issue a certificate and where a staff lawyer provides service on this basis.

Review of Coverage and Eligibility

An applicant can appeal a refusal by an area director to the Executive Director. Refusals upheld by the Executive Director can be further appealed to the Board of Directors.

Application Fee

Legal Aid charges a non-refundable application processing fee of $25.00 with each Legal Aid application. The area director office does not accept an application without a fee. This is in addition to any agreement to pay or expanded eligibility contract that may be imposed. An applicant may be able to withdraw an application for a refund until the application is entered into the computer.

An applicant who has defaulted previously, must pay the application fee when applying, or the application will not be assessed.

An applicant for a certificate to appeal conviction and/or sentence will have to pay the $25.00 application fee. The application fee will be chargeable for representation on disciplinary offences, but staff will be permitted to represent those on an expanded duty counsel basis.

The following applicants are exempted from paying the application fee:

  1. Persons in receipt of municipal, provincial or band social assistance benefits.
  2. Women applying from Women's Shelters.
  3. Persons applying from Mental Health Facilities.
  4. Adults in full-time attendance at a secondary or post-secondary institution and in receipt of student aid or student loans.

Sources


[12] Canadian Centre for Justice Statistics. Legal Aid in Canada: Description of Operations. Ottawa: Statistics Canada, March 1999. Cat. No. 85-217-XIB. p. 44.

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