A Profile of Legal Aid Services in Family Law Matters in Canada
- 2.10 British Columbia
British Columbia uses a combination of staff lawyers and the judicare model for the delivery of legal aid, with private lawyers on a tariff handling the majority of legal aid cases. The current family law tariff is $72 per hour ($80 minus the current 10 percent holdback for family case billings). Legal aid is administered by the Legal Services Society, which also has the mandate for public legal education in the province.
At the time of application for legal aid coverage for a family law issue, the intake worker may divert the case to other services, as appropriate, such as the Family Maintenance Enforcement Program, Family Justice Services, parent education programs, or local counselling services or advocacy groups. Family Justice Services offers alternative dispute resolution and mediation through Family Justice Counsellors. A referral to this program is deemed appropriate for applicants who are eligible for legal aid if there is no history of abuse, if interim orders are not urgently required for the safety of the applicant or their children, and if the applicant agrees to mediation. The applicant’s consent to mediation is not required in cases where the only issue is obtaining an initial maintenance order.
In 1994, the Legal Services Society implemented a Family Case Management Program (FCMP). The purpose of this program is to ensure that clients are treated fairly and receive the appropriate level of service for their case, and to direct necessary resources to clients who are most likely to benefit immediately from them. The FCMP allows the Legal Services Society to regularly assess cases following the initial referral to ensure that the actions taken or proposed are reasonable, and that the case continues to meet eligibility guidelines (British Columbia Legal Services Society 2001). FCMP applies to Family Relations Act and Divorce Act matters, but not to Child, Family, and Community Service Act (CFCSA) matters.
The Legal Services Society of British Columbia provides family legal aid services to individuals who meet the financial eligibility guidelines in the following cases:
- Where there are serious family problems, such as cases where the applicant or children are in danger of abuse or there is a danger that the applicant will lose contact with the children.
- Where the applicant may be imprisoned or confined through a civil proceeding such as for non-payment of maintenance.
- Where the applicant has legal problems that may affect his/her ability to earn a living or protect and support his/her family.
- Where the applicant has legal problems that threaten his/her family’s physical or mental health and safety.
- Where the applicant needs assistance in starting maintenance payments or coping with initial custody or access orders and there is no other help available.
- Where the legal problem deals with the removal or perceived threat of removal of a child from the home by Children’s Services under the Child, Family and Community Service Act, or deals with custody and access issues related to a child in the care of the Ministry for Children and Families.
- Variations are only covered in cases where there are applications for changes to maintenance orders when the respondent faces the prospect of going to prison or where the client is likely to benefit by at least $100 per month. Variations are also covered for changes to custody and access orders in cases where the variation is necessary to reduce risk of harm to the child(ren); the applicant requires a restraining order and changes to custody or access are necessary to accomplish this; and where the existing relationship between a parent and child is in jeopardy.
- Legal aid does not cover cases where division of property is the sole issue unless the property is the matrimonial home and the applicant is not legally married to the respondent, is not registered on the property title, and has an interest in the property of greater than $5,000.
The Legal Services Society is piloting the issuance of limited referrals to provide up to three hours of legal services for family clients. This project is being tested by staff lawyers in four communities, and will be expanded in conjunction with information on a family law Web site being developed with funding from the Law Foundation of BC. This is a four-year project designed to provide current plain-language information on family law to the pubic – including guides on how to complete forms and links to referral services – and to provide training tools, closed discussion groups, and resource lists for legal staff and other advocates.
Financial eligibility for legal aid in British Columbia is determined largely on the basis of net monthly income plus a personal property exemption. The income cut-offs are lower for criminal cases than for other types of cases, including family law matters. Examples of the net annual income cut-offs for family legal aid coverage as of April 1, 2000 are: single person – $12,024 (personal property exemption – $2,000); two persons in household – $18,048 (personal property exemption – $4,000); three persons in household – $21,060 (personal property exemption – $4,500); and four persons in household – $23,292 (personal property exemption – $5,000).
An applicants whose income is below the appropriate cut-offs is allowed to possess some assets in addition to the personal property exemption (e.g., savings accounts, RRSPs, furniture, jewellery, etc.) without being disqualified from coverage. A summary of these assets includes:
- Family home. If the family home is considered disposable and there is sufficient equity in it after a reasonable exemption has been deducted, the applicant will be deemed ineligible. However, the family home is usually viewed as non-disposable and thus is not grounds for exclusion.
- Real property. If the applicant owns a share of real estate other than the family home in excess of $10,000, he or she will be ineligible.
- Vehicles. An applicant will be ineligible for legal aid coverage if his/her equity in vehicle(s) exceeds $5,000.
- Business assets. Any equity in business assets is grounds for disqualification for coverage.
Effective July 1, 1998, applicants whose household income exceeded the maximum by up to $150 are still eligible for limited legal aid if they face one or more emergency problems or they require coverage for a child protection proceeding.
Like several other Canadian jurisdictions, British Columbia has been faced with shortages in funding for legal aid in recent years. This situation led the Legal Services Commission to cut services in several areas in 1997/98. The cuts that specifically affected the delivery of family legal aid included:
- Changing eligibility levels, although these changes were different for criminal and other types of matters, in an attempt to reduce the impact on family cases.
- Eliminating the income "flex test" for family cases. This test allowed an exemption of an additional $200 per month of income in cases where the legal situation was deemed an emergency.
- Eliminating coverage for changes to maintenance orders.
- Restricting coverage for changes to custody or access orders to cases where a claim of potential harm to the applicant or child(ren) is supported by a mental health professional.
- Eliminating funding for the Law Students Legal Advice program for the Do-Your-Own-Divorce program.
- Reducing the tariff fees to lawyers by five percent.
Some of the reductions in coverage resulting from these changes were alleviated in July 1998 and April 2000 with changes to financial eligibility guidelines that allowed more applicants to be eligible for legal aid coverage for family law matters.
 This report deals with service provision prior to the restructuring of the Legal Services Society in the summer and fall of 2002. The Society currently has a significantly different service delivery model that focuses on core services for family and other legal matters.
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