A Profile of Legal Aid Services in Family Law Matters in Canada
The purpose of this project was to collect information from all provinces and territories in Canada concerning the provision of family legal aid services in their jurisdictions. Unfortunately, but not unexpectedly, the information available from the jurisdictions varied widely in terms of both the amount of information and the level of data. The conclusions presented below are based on this limited information and should be treated as preliminary considerations.
Provinces and territories should be encouraged to collect data that are comparable across jurisdictions, and further research using such data needs to be conducted in order to make informed policy decisions. For example, to help determine the level of need for family legal aid, it would be useful to know the number of applications as broken down by approvals and refusals. Data on the primary family law issue dealt with in each case, and the age and gender of the client, should be routinely collected. Data should also be routinely collected on the total cost of family legal aid services, as well as average cost per case. Some jurisdictions only collect these data for all civil cases. In jurisdictions using a mixed model of service delivery, it would be useful to have cost breakdowns by mode of delivery.
As described in the Introduction, there are three basic models used in the delivery of legal aid services in family law cases in Canada: primarily staff; primarily judicare (private lawyers); and a mixed model of service delivery, which uses both staff and judicare. Jurisdictions that use primarily a staff model of service delivery include Newfoundland, Nova Scotia, Saskatchewan and the Yukon. Jurisdictions using primarily the judicare model include Ontario, Alberta, British Columbia and Prince Edward Island. It should be noted, however, that Alberta is currently implementing a Family Law Office Pilot Project, which would use the staff model to deliver family legal aid in Edmonton and Calgary. Nunavut currently uses a mixed model of service delivery, but is working toward a staff model. New Brunswick, Québec, Manitoba and the Northwest Territories use a mixed model of service delivery, utilizing both staff and private lawyers.
In an attempt to improve access to the justice system and provide low-income individuals with more cost-effective legal representation in family law matters, several jurisdictions are exploring alternate means of service delivery. A major recommendation in a report commissioned by the government of Prince Edward Island (Ross 1999) was the establishment of a Family Justice Centre that would use a triage model to allocate legal and other professional services to eligible family law clients. Legal aid for all family law issues would be available for all low-income families. The emphasis in the Family Justice Centre would be on non-adversarial methods of dispute resolution in family law cases. It should be noted, however, that this report has not yet been implemented and the current proposal for the Family Justice Centre is a scaled down version of the model recommended by Ross.
Alberta is currently implementing a pilot project that involves the establishment of two Family Law offices with staff lawyers in order to improve access to justice for legal aid clients in a cost-effective way. Each office will be staffed with lawyers, as well as support staff and a social worker. One of the goals of the pilot project is to address special client needs by practising law in a holistic manner, i.e., working with community organizations to help clients obtain non-legal assistance as well.
Similarly, a recent report outlining the state of family law in Nunavut (Gallagher-Mackay, Report on Family Law Research in Nunavut, draft) concludes that there is a need to work toward 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. This will be done in accordance with Inuit principles, using a collaborative approach with community members to recognize the social and cultural uniqueness of Nunavut.
In British Columbia, the Legal Services Society is piloting the issuance of limited referrals to provide up to three hours of legal services for family law 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 British Columbia. This is a four-year project designed to provide current plain language information on family law to the public – 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.
As jurisdictions consider revising their delivery models, issues of the relative cost-effectiveness and quality of service provided by each model inevitably arise. There has been some work done comparing the relative costs and benefits of the two service delivery models in the criminal law context. However, many of the service delivery issues are quite different in the family law context, and it is uncertain how applicable the information on the criminal context is to family law service delivery issues. According to Currie (1999), family law cases are not as structured as criminal cases. The issues dealt with in family law cases are often complex and emotionally charged, and cases may continue for long periods of time.
A controversial issue in the provision of legal aid services is whether clients have the right to choose a lawyer (Cossman and Rogerson 1997). This may be especially important in family law cases, where clients’ most personal and intimate matters may be the subject of legal proceedings. In keeping with a shift toward a staff model of service delivery, many jurisdictions in Canada do not allow clients to choose their lawyer; rather, a staff lawyer is assigned to approved applicants. In Nova Scotia, for example, counsel is assigned, except in cases of conflict of interest or in criminal cases where the penalty for a criminal charge is mandatory life imprisonment. Counsel is assigned in the Yukon, the Northwest Territories, and Nunavut.
Under the Family Law Office Pilot Project in Alberta, although the question is still not fully resolved, it may be that clients will no longer have a choice of counsel. In cases where there is a conflict, because the Family Law Office is already representing one party, the second party will be referred to the private bar.
Some jurisdictions still allow family legal aid clients a choice of counsel. An individual in Québec or in British Columbia who is deemed eligible for legal aid coverage receives the services of a staff lawyer, or may choose a private lawyer who agrees to take the case. Approved applicants in Manitoba have the option of choosing any lawyer on the legal aid panel, which includes both staff lawyers of Manitoba Legal Aid and members of the private bar.
While, in general, all jurisdictions base financial eligibility on need and income, they vary in the specific method used to determine whether applicants are eligible for family legal aid services. Some jurisdictions use a sliding scale of annual income cut-offs depending on the number of family members. Newfoundland, Prince Edward Island, Nova Scotia, Québec, Manitoba, Alberta and British Columbia have specific income cut-offs. The Yukon uses a sliding scale, but its cut-offs are confidential. Ontario uses a net annual income waiver scale, and individuals with incomes above scale amounts require detailed needs testing. Annual income cut-offs for a single person vary from $4,716 in Newfoundland to $14,176 in Prince Edward Island.
There are concerns that eligibility criteria for legal aid are at or near social assistance income levels. As a result, individuals who are "working poor" or have very limited means may be ineligible for legal aid, and may be forced to represent themselves (Ferguson 2001) or simply be unable to seek relief in the justice system. As was discussed in Section 3.1.2, approximately two thirds to three quarters of family legal aid clients are female, meaning that women are particularly disadvantaged in terms of family legal aid coverage.
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