A Profile of Legal Aid Services in Family Law Matters in Canada

1. Introduction


1.1 Background

The purpose of legal aid in Canada is to ensure that low-income individuals have access to competent legal representation and fair access to the justice system. Legal aid services in Canada are provided in two main areas of law: criminal, including youth court; and civil, including immigration, family law, and poverty/social benefits law, which encompasses landlord and tenant matters, eligibility for social assistance and a range of other poverty law issues.

Each province and territory in Canada has its own legal aid plan. The major sources of funding for legal aid are the federal and provincial/territorial governments. Other sources of revenue are cost recoveries from clients and contributions from the legal profession. With the termination of the Canada Assistance Plan and the adoption of the Canada Health and Social Transfer on April 1, 1996, the federal government contribution to civil legal aid is now part of a block grant to the provinces/territories and there is no longer any specific earmarking of funds for civil legal aid cases (Johnstone and Thomas, 1998). The determination of how these funds are spent is made by the provinces and territories. Many professionals who work in Canada’s justice system believe that the amount of funding available for family legal aid is less than is required to ensure adequate coverage for individuals who require this assistance. However, to date, little comparable data on family legal aid volumes and expenditures across provinces and territories has been collected.

In all jurisdictions except Prince Edward Island, an independent organization, usually affiliated with the Law Society, has direct responsibility for the administration of legal aid services. This ensures the appearance of independence in making decisions about funding for individual cases, which is important, as many individuals receiving legal aid services are involved in litigation against the state, for example, in criminal or child protection proceedings.

Three models of legal aid service delivery are currently in use in Canada. In the staff lawyer model, lawyers are employed directly by legal aid plans to work exclusively on legal aid cases. In jurisdictions with a staff lawyer model, private lawyers are still used in cases where issues such as conflict of interest require it. In the judicare model, legal aid services are provided by lawyers in private practice, who are paid by the legal aid plan on a contract, or tariff, basis. Most jurisdictions employ a mixed model of legal aid service delivery, which means that they use a combination of staff and private lawyers to provide legal aid services.

1.2 Purpose of this research project

Department of Justice Canada contracted with the Canadian Research Institute for Law and the Family (CRILF) to conduct a project that would provide a comparative profile of family legal aid services across all jurisdictions in Canada. This report provides the findings of this project.

The purpose of the present project was to collect information from all provinces and territories in Canada concerning the provision of legal aid services in family law cases. In addition to collecting descriptive material concerning the model for delivery of family legal aid, coverage provisions, and financial eligibility in each jurisdiction, the project also attempted to collect comparable information regarding the volume of family legal aid cases, as well as expenditures on family legal aid in each province and territory. Specifically, the following information was requested from all jurisdictions:

  • A description of the legal aid system for family law cases.
  • For the most recent year available, the volume of family legal services delivered by type of family law matter, by delivery mode (i.e., tariff, staff lawyers, etc.), and by each stage of the civil justice process.
  • For the most recent year available, aggregate expenditures and cost per case of family legal aid services.
  • If available, data on non-litigation legal aid services such as mediation and summary advice.
  • If available, information on referrals to other agencies.
  • For the most recent year available, the number of applications, approvals, refusals and actual deliveries by type of legal issue.
  • For a five-year period, data on overall trends in expenditures and volumes of family legal aid services.

1.3 Methodology

In order to collect information relevant to the project from all provinces and territories, a memorandum was sent to the director of each legal aid service on June 27, 2001. Several follow-up requests were made to the jurisdictions that did not respond to the initial request for information. As responses were received from each jurisdiction, they were logged according to whether information on each question posed was available. Given the scope of this study, it was not possible to conduct personal interviews with key informants.

The format in which the information was received varied across jurisdictions. In some cases, the requested information was supplied in a letter, or in tables produced specifically for this project. In other cases, published documents were provided, such as annual reports, brochures, and evaluation reports.

In addition, the Web sites of all legal aid services were examined to determine if any additional information was available. The authors also reviewed available literature, though there is not a great deal of published material on family legal aid in Canada. Data from these sources were collated and summarized and are also presented in this report.[1]

1.4 Limitations

Several limitations to the data presented in this report should be noted. First, the information available from each jurisdiction varied widely in terms of both the amount of information and the level of detail. While some jurisdictions had data that addressed many of the questions posed, others were able to provide relatively little data. Given that the administration of legal aid in Canada is the responsibility of the individual provinces and territories, it is not surprising that different jurisdictions collect data on their systems in different ways; however, this fact makes cross-jurisdictional comparisons difficult.

A second limitation to be noted is that data addressing the same issue from different jurisdictions are not necessarily directly comparable. For example, when providing data on expenditures on legal aid, some jurisdictions were able to break these costs down for family legal aid, while others could only provide these data for all civil legal aid cases. The type of data presented is clearly indicated in all tables; however, this also has affected the ability to draw comparisons across jurisdictions.

A third limitation is that not all jurisdictions were able to provide data for the same time period. Jurisdictions were asked to provide data for the most recent year available, as well as trend data for a five-year period. In some cases the years compared are not identical.

This report relies on information provided by the individual jurisdictions, and, as already noted, this information varies considerably. In some cases, provinces and territories identified issues that were particular to their jurisdiction. These have been included in Section 2. Not all jurisdictions identified specific issues, and it may be the case that some issues are relevant to other jurisdictions as well.

Finally, the specific family law issues that are dealt with under the umbrella term of "family legal aid" differ across jurisdictions. This should be kept in mind when attempting to draw comparisons across provinces/territories. Moreover, not only are legal issues classified differently, the types of services that are included within family legal aid also differ across jurisdictions. For example, in some jurisdictions, services provided by professionals such as mediators, parent educators and paralegals may be included as a family legal aid service, in addition to those of traditional legal counsel.

[1] As a response was not received from the Director of Legal Aid in Newfoundland, information on this jurisdiction has been collected from other sources such as Web sites and published articles. The information on this jurisdiction is more limited than that from other provinces and territories.

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