A Profile of Legal Aid Services in Family Law Matters in Canada
The Legal Services Board, an independent arm’s length body, whose funding comes via the Access to Justice Act through the Northwest Territories Department of Justice, uses a mixed model of service delivery, utilizing both private and staff lawyers to provide family legal aid services. The Board has a family law staff lawyer in Yellowknife, and another in Inuvik. The head office of the Board is located in Yellowknife, and applications for family legal aid are approved by its Executive Director or his/her designate. If an applicant is denied coverage, the person may appeal the decision to the Executive Director and, if unsuccessful, to the Board of Directors of the Legal Services Board.
A panel of lawyers is established under the Legal Services Act, and lawyers are assigned to eligible applicants on a rotational basis (Statistics Canada 1999). The Legal Aid Plan sometimes moves away from the rotation, per section 37, Legal Services Act.
The Legal Services Board seeks a legal opinion as to merits from assigned counsel prior to authorizing a case to proceed.
Family law matters covered by legal aid in the Northwest Territories include divorce, custody, access, child/spousal support, restraining orders, possession of matrimonial home, division of property, and child welfare cases. It is policy in the Northwest Territories that, except in exceptional circumstances, legal aid coverage is not provided for divorce and/or division of property when there are no associated issues of child or spousal support, custody, or access.
It should also be noted that the Legal Services Board will fund mediation for legal aid clients and provide coverage for a client to enter into a collaborative law process to resolve disputes. Further, the Board provides support to the territorial government’s Parenting after Separation and Divorce program by referring clients and assisting with their registration in the program.
Financial eligibility for family legal aid services is determined by the household’s net income, expenses, assets, liabilities and the requirements of the applicant, spouse and dependants. Income includes benefits and allowances received from government agencies and other sources on a regular basis. Expenses include basic living allowances (e.g., food, clothing, shelter), utility costs, transportation costs necessary for earning a living or enabling an applicant’s children to attend school, medical costs, installment payments on debts incurred prior to the application for legal aid, and any other expenses allowed by the Board or the Executive Director (Legal Services Regulations, section 20). In general, legal aid is approved as a matter of course, subject to the merits of the claim, if all or most of an applicant’s income is from social assistance, or if the payment of legal fees would reduce an applicant’s income such that he or she would become eligible for social assistance.
An applicant may be required to contribute or fully repay legal fees if he or she is not in receipt of social assistance. The ability of an applicant to contribute toward the cost of legal services is determined by reference to his or her assets and liabilities, income and expenses, as well as those of his or her spouse and dependants (Legal Services Regulations, section 20).
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