A Profile of Legal Aid Services in Family Law Matters in Canada
- 2.13 Nunavut
The Legal Services Board of Nunavut began operation on July 1, 2000, and uses a mixed model of service delivery. The following steps are taken when a legal aid application regarding a family matter is received:
- The application is entered manually into the incoming mail log and is given a case number from the family client ledger.
- The application is reviewed by the Criminal/Civil Statute Administrator, who assesses whether the client is financially eligible.
- If the client is financially eligible, the client is approved for an opinion only. Counsel is assigned and has a maximum of three hours to interview the client and provide the Legal Services Board with an opinion letter setting out the relief sought, the applicable law, and the overall merit of proceeding.
- The opinion letter is reviewed by the Office Manager/Senior Statute Administrator, who decides whether to approve the client for assignment of counsel to proceed as per the tariff. The Executive Director makes the final decision in difficult cases.
- Unless there is a conflict, upon approval, the lawyer who did the opinion letter will be assigned the case, to follow it through to completion.
Currently, Nunavut has four staff lawyers whose sole responsibility is family law. In addition, approximately 10 private lawyers from the Northwest Territories (licensed to practice in Nunavut) are on the legal aid panel to do family law on a part-time basis in Nunavut.
The family law matters covered by legal aid in Nunavut include custody, child support cases including variation of maintenance applications, DNA testing if required in child support matters, division of property and issues relating to the possession of the matrimonial home where other issues such as custody or child/spousal support are involved, spousal assault, and access issues. Divorce is covered only if there are also issues of custody, access, or child/spousal support involved. As mentioned above, a legal opinion indicating merit is required in all civil and family matters before the case is authorized to proceed.
Financial eligibility is set out in Schedule C of the Legal Services Regulations. According to section 4:
An applicant is eligible where he/she received all or most of his/her income from social assistance or where the legal fees for services rendered outside the plan would reduce the applicant’s income to a level whereby he or she would become eligible for social assistance, in which case, he or she may be required to contribute towards the payment of the costs.
Assessment of financial eligibility is determined by the applicant’s monthly income minus monthly expenses. Applicants for legal aid are required to submit copies of pay stubs and receipts or statements for all expenses claimed, with the exceptions of food, clothing, transportation and telephone. The amounts allocated for these items are as follows: food – an amount according to the Social Assistance Table used in the community of residence and based on the number in the household; clothing – $40 per household per month; transportation – $75 per month; and telephone – $40 per month.
The Legal Services Board of Nunavut has "presumed eligibility" in criminal matters, which means that all persons in criminal matters shall be presumed to be financially eligible for circuit and duty counsel services. Clients proceeding to trial must apply for legal aid in order to be represented through the Plan. As well, if the case is determined by duty counsel to be overly complex or sentencing may be lengthy or complex, then the client will be asked to fill out a legal aid application. This affects family law when there are matters that also involve child protection proceedings, as these matters may be dealt with by duty counsel while on circuit.
There are unique challenges in Nunavut regarding the delivery of legal aid services. In a recent report outlining the state of family law in Nunavut, Gallagher-Mackay (Report on Family Law Research in Nunavut, draft) outlines several factors that impact on the development and application of family law in Nunavut:
- Political context
- The Territory of Nunavut was established as an integral part of the formal resolution of outstanding Aboriginal claims of the Inuit in the eastern Arctic. The settlement of the land claim and the creation of Nunavut on April 1, 1999 was the result of
"an intense, long-standing, broadly based Inuit struggle to achieve self-determination"(p. 7). While the laws and regulations of Nunavut were "grand-fathered" from the Northwest Territories, there is a commitment on the part of the Government of Nunavut that Inuit traditional knowledge will underlie the development of all social policy and institutions in the territory.
- Nunavut covers two million square kilometres, or roughly one fifth of Canada’s land mass. The majority of the population lives in 28 small communities that are extremely isolated, and can be reached only by air, boat, or arduous overland travel. This remoteness decreases the availability of services, and raises the costs of service delivery.
- The vast majority of Nunavut’s population is Inuit (83 percent in 1996). There is widespread use of indigenous languages – Inuktitut and Innuinaqtun – and close to 15 percent of the population do not speak English or French. This has a significant impact on the court system and the development of social services. Nunavut also has one of the youngest populations in Canada, with almost one half (48 percent) under the age of 15.
- Social indicators
- Nunavut has serious problems with poverty, low health status, housing shortages, family breakdown, and domestic violence. Unemployment is higher than anywhere else in Canada, and the suicide rate is six times the national average.
- Justice system
- Nunavut has a unified court structure, and the Nunavut Court of Justice operates on a fly-in basis as a circuit court. Criminal law is the major justice priority in Nunavut, resulting in a lack of access to justice in the family law area. In addition, there is an acute shortage of family lawyers. According to Gallagher-Mackay (Report on Family Law Research in Nunavut, draft), in 2001 there was only one full-time family lawyer and one part-time family lawyer in Nunavut, both of whom were employed by Legal Services Clinics.
A strong conclusion in the Report on Family Law Research in Nunavut is that there is a need to work towards a non-court based system, accessible at the community level, to address family law issues. The Nunavut Department of Justice, with support of the federal government, has committed itself to training mediators, which will be done in accordance with Inuit principles, on the basis of a collaborative approach between southern-trained mediators and respected community members.
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