Legal Aid Eligibility and Coverage in Canada

Inventory of Legal Aid Plans in Canada (continued)

Inventory of Legal Aid Plans in Canada (continued)

Ontario

The Ontario Legal Aid Plan was changed to Legal Aid Ontario (LAO) in 1999. The new organization is the provincial agency responsible for promoting access to justice for low-income Ontario residents. Legal Aid Ontario operates a mixed delivery system using both staff and private lawyers to deliver services.

It should be noted that Ontario also operates legal clinics. They operate under different regulations and their eligibility criteria and coverage are also different. Community legal clinics were first established in the early 1970s to provide legal services and public legal information and community development for low-income and disadvantaged people. Clinics address the unique legal needs of low-income people who need help with the essentials of life, such as subsistence income and safe housing, and access to the most basic social services, such as education for children. Clinics do not normally provide criminal and family law services. These are available through private lawyers acting on Legal Aid Ontario certificates.

Financial Eligibility

Legal aid financial eligibility levels in Ontario are set by provincial regulation. Historically the eligibility levels have been tied to provincial social service benefit levels. The financial eligibility levels were last changed in 1995, the last time changes were made to provincial social service benefit rates. Financial eligibility is determined through a "needs test." It takes into account income but also considers the expenses and liabilities of the applicants. Non-contributory legal aid is available on the basis of an assessment of maximum allowances, including a basic allowance, and allowances for debts and shelter. Applicants can receive free legal aid if they do not exceed the allowances. There is an "income waiver" element of the eligibility determination process that "fast tracks" applicants who have very low incomes through the assessment of assets. The income waiver is not an income cut-off but rather a tool or a measure to determine the need for a more detailed assessment. Most social assistance recipients are automatically eligible for free legal aid (with the provision they do not exceed the assets test).

Income Waiver Levels
Family Size Maximum net monthly amount
1 $601
2 $1,075
3 $1,137
4+ $1,281

Applicants with incomes above the waiver levels by family size undergo an assessment in which income and expenses are considered. LAO takes into account monthly expenses which are necessary for the household. The basics and shelter allowance are derived from the Family Benefits Rates and are approximately 1.5 times Family Benefits. These include:

Basic Allowance

Covers food, clothing, transportation, telephone, cable TV and personal expenses.

Shelter Allowance

Actual shelter expenses up to the maximum standard allowance per family size are also allowed.

Debt Allowance

All applicants are allowed actual debt expenses up to the maximum standard per family size. However, debts which are not being paid are not included as monthly expenses.

Basic Allowance
Family Size $/Month $/Year
1 427 5,124
2 830 9,960
3 1,014 12,168
4 1,218 14,616
5+ 1,423 17,076

Shelter Allowance
Family Size $/Month $/Year
1 487 5,844
2 766 9,192
3 831 9,972
4 903 10,836
5+ 974 11,688

Dept Allowance
Family Size $/Month $/Year
1 175 2,100
22 225 2,700
3 275 3,300
4 325 3,900
5+ 375 4,500
Expanded Eligibility through Contributions and Allowance for Extraordinary Expenses

LAO can provide legal aid to applicants who are above the various income and asset measures. They would then require a contribution. This is determined on a case-by-case basis. LAO can allow amounts for unavoidable but necessary expenses such as prescriptions, medical supplies and costs associated with exercising access to legal aid.

Income Definition

Net monthly income is calculated by taking gross monthly income and deducting the following:

  • Non-voluntary wage deductions (CPP, EI, taxes)
  • Day care costs up to a maximum for unlicensed care
  • Support paid (court order/separation agreement)
Family Definition

The size of the family unit determines who is to be assessed as part of the client's application for legal aid. All allowances are measured in terms of family size.

It is important to note that Legal Aid can also take into account someone associated with the applicant who is not a member of the family but who can be considered another source for legal fees. This is, however, at the discretion of the area director. This can include people who contribute to the needs of the applicant, for example, a roommate on a lease.

Assets Test

All liquid assets are considered when assessing eligibility. These include cash, bank accounts, investments, RRSPs. The allowable amount for liquid assets is:

Family Size Exempt amount
1 $1,000
2 $1,500
3 $2,000

An amount over this limit is considered to be available for legal fees. Other assets which can be sold or easily converted into cash may also be identified as liquid assets. While an applicant may own a house and still receive legal aid, the LAO may take a lien against their property.

If the assets are equal to the estimated cost of the legal fees, the applicant is refused any form of legal aid. If the assets are less that the estimated cost of legal aid, the client will be offered legal aid but will be required to make a contribution determined on the basis of ability to pay.

Client Contributions

In conjunction with the financial eligibility test, there is a payment agreement policy that outlines the contribution which will be required based on the recommendation of the application/ assessment officer. In extraordinary circumstances, the area director has the discretion to vary from the following policies:

  • half of the monthly disposable income should be taken as a monthly contribution;
  • if the disposable income is under $50, contribution should be waived;
  • if the disposable income is over $300, the application should be refused;
  • if the disposable income is sufficient to repay the estimated legal fees in 6 months the applicant should be refused;
  • 100% of liquid assets over any applicable exemption level should be sought as a lump sum contribution;
  • if the excess liquid assets are equal to or greater than the estimated amount of legal fees, the application should be refused;
  • property owners will be refused legal aid unless private financing is not available and then a lien is required as a condition of obtaining assistance.
Substantive Coverage
Coverage restrictions have been revised over the last several years. They have been changed several times as a result of budget and human resource constraints. Certificates are now issued only if there is a probability of going to jail if convicted. Certificates are no longer issued when a person may lose their job or means of earning a living as a result of a conviction. The new area added to the LAO's coverage restrictions states that applicants charged with less serious offences, where there is no probability of going to jail may be able to get help in the courtroom from duty counsel.

There are now explicit factors that guide the LAO in making coverage decisions. Systemic factors (type of offence, judicial practices in sentencing and Crown practices in prosecuting) and personal factors (mental competency of the applicant, whether or not they have been refused bail, or some disability that diminishes their capacity to be treated fairly) are taken into consideration before determining whether an applicant should be refused on the basis of coverage restrictions.

Criminal Appeals

Criminal appeals are covered only if the appeal has merit, is reasonable, and has a strong probability of success. Crown appeals are also covered. The probability of incarceration test is also applied on criminal appeals.

Duty Counsel

Full service duty counsel services are available to clients who meet a simplified income and assets test. This is an attempt to ensure that only those who cannot afford a lawyer receive help from either duty counsel or from an advice lawyer (available for a few hours a week and provides free advice). People in custody and young offenders are excluded from testing.

LAO has found that duty counsel use continues to increase as more people appear in court without a lawyer to represent them.

Review of Financial Eligibility and Coverage

Any decision regarding contributions and any refusal of an application may be appealed.

Administration Fees

There are no administration fees.

Sources

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