A Profile of Legal Aid Services in Family Law Matters in Canada
- 2.6 Ontario
An organized legal aid plan was first established in Ontario in 1951. The Ontario Legal Aid Plan was formally instituted by legislation in 1967, operating under a primarily judicare model (Law Society of Upper Canada 1999). Eligible applicants are allowed to choose their own private lawyer. In 1999, pilot project family law clinics were established in Ottawa, Toronto and Thunder Bay to provide representation by a staff lawyer for some legal aid clients.
In 1994, the Legal Aid Plan signed a Memorandum of Understanding with the Ontario government that capped the total legal aid budget, and, in 1996, the family law area became a major focus for cost-cutting measures. This meant that only the most serious cases in the family area would receive legal aid coverage. However, as of April 1, 1997, coverage was expanded to include more family law cases, and the number of hours that a lawyer could spend on a family law case was increased.
In 1999, the Board of Legal Aid Ontario approved a number of service improvements in an attempt to enhance accessibility to legal aid in the province. These improvements are outlined in LAO Service Improvement, 1999/2000, a report that is available on the Ontario Legal Aid Plan’s Web site (www.legalaid.on.ca). Specifically, with respect to family law legal aid coverage, the Board approved initiatives to develop and improve services for victims of violence; the issuance of certificates for access applications by extended family members; and enhanced duty counsel services.
Proposed initiatives to improve services for victims of violence include: enhanced education and training for Legal Aid Ontario staff and service providers; improved consultation and outreach; development of protocols for victims of violence; and development of specific programs for victims of violence.
There are duty counsel available to provide some assistance to those appearing in Family Court, though they will not conduct trials. Duty counsel can
"give advice, prepare and review documents, represent clients in some motions and hearings and assist with settlement negotiations" (Legal Aid Ontario 2001). In 2000/01, the number of staff duty counsel was increased. Staff duty counsel act as supervisors of services provided on a per diem basis.
There are Family Law Information Centre workers, at most Family Courts in Ontario, who provide information to unrepresented individuals and assistance with completion of court forms. This program is funded by the Ontario Ministry of the Attorney General. Advice services are available from lawyers in Unified Family Courts in all Ontario Court of Justice courthouses across the province, as well as in many locations in the community. They are funded by Legal Aid Ontario.
In late 1999 and early 2000, pilot projects offering expanded duty counsel services for family law were opened in Hamilton, London, and Oshawa. These projects are intended to assist unrepresented clients with advice, document preparation, and representation on motions and hearings. Expanded duty counsel services include support staff services, allowing for file continuity and improved capacity for resolution of issues.
In 2001, Legal Aid Ontario introduced a Family Case Management Program in an attempt to control costs. A case management meeting is held early in the proceedings to establish a plan and target for resolution of the case. It is anticipated that the case management meetings will allow Legal Aid Ontario to predict more accurately the progress and costs of family law certificates.
In another effort to control costs, in July 2001, Legal Aid Ontario required duty counsel to take a more active role for assisting family law litigants with simple support and access variations.
Legal Aid Ontario covers all family law matters except division of property and support where the client is in receipt of government benefits and has assigned any support order to the government. Duty counsel will assist to vary or collect child support orders.
The guiding principles for legal aid coverage of family law issues in Ontario are to give priority to cases that involve the safety of a spouse or child(ren) who are at risk and to child protection cases. Depending on the merits of a case, legal aid coverage is provided for family law cases involving adoption, custody and access, restraining orders, support, and property.
Where a legal aid certificate has been issued to one party in a dispute, a certificate would also generally be issued to the other party, providing they are financially eligible and the case has merit.
Financial eligibility for legal aid coverage in Ontario is determined by looking at individual circumstances. This "needs" test approach considers income, liabilities, and the seriousness of the legal matter. Living expenses are allowed up to predetermined maximums in the categories of: food, clothing, transportation, shelter and debt. In 1996/97, for example, the net annual maximum expense allowance was $14,604 for a single person, $23,127 for a family of two, $26,424 for a family of three, and $30,036 for a family of four (Statistics Canada 1999). If an applicant’s net income (i.e., gross income minus non-voluntary deductions) is above a pre-determined amount, detailed needs testing is required. In 1996/97, the net annual income waiver for a single person was $9,192. The amounts for families were: two members – $16,452; three members – $17,400; and four or more members – $19,608 (Statistics Canada 1999). Based on the outcome of the financial assessment, an individual may receive free legal aid, may receive legal aid but be required to make a contribution, or be denied legal aid.
There continue to be significant concerns in Ontario about the effects of underfunding on accessibility to legal aid for family law clients (Ferguson 2001). The financial eligibility criteria have been criticized for excluding many of the working poor. The tariff rate paid to lawyers is $57 per hour for duty counsel and, depending on experience, ranges from $67 per hour to $84 per hour for case work. Fewer lawyers in private practice are willing to take on family law legal aid clients, resulting in delays in obtaining counsel. Notwithstanding 1998 increases, the hourly caps on family law cases are considered inadequate by many lawyers (Ferguson 2001).
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