A Profile of Legal Aid Services in Family Law Matters in Canada

4. Conclusions (continued)

4. Conclusions (continued)

4.2 Volume of family law legal aid services

Data on the number of applications for family legal aid were only available for seven jurisdictions, therefore comparisons were made using number of approved applications. The rate of approvals per 100,000 population varied considerably across jurisdictions. The lowest rate of approvals (i.e., 175) is found in Prince Edward Island. Québec has the highest rate of approvals at 1169 per 100,000 population. For jurisdictions that provided refusal rates, these rates were highest in the Northwest Territories (40.8 percent), Alberta (39.1 percent) and British Columbia (38.4 percent).

The family law matters covered by legal aid services also varied considerably across provinces and territories. The variation between jurisdictions may reflect both differences in total legal aid budgets and different demands and priorities for legal aid. Generally, priority is given to cases involving spousal abuse issues and child protection proceedings. There is significant variation across Canada in whether legal aid will cover support applications and custody or access cases that do not involve abuse issues.

In Prince Edward Island, full coverage for all aspects of a family law case is restricted to cases involving domestic violence. In New Brunswick, victims of family violence have access to coverage for a wide range of family law issues. Legal aid services are more restricted for applicants who are not victims of family violence, and are limited to issues involving support orders, custody and guardianship. In the Yukon, coverage is only allowed for cases in which children are involved, and while a matter may be commenced by the filing of a Petition for Divorce, legal aid counsel are not authorized to complete the divorce proceedings. In Nunavut, coverage for divorce is allowed only if there are other issues such as custody, access, or support.

4.3 Costs of family law legal aid services

Nova Scotia spends approximately two fifths of its total legal aid budget on family law services, Saskatchewan spends almost one third of its legal aid budget on civil legal aid, and Prince Edward Island spends 29 percent of its total legal aid budget on family law matters. The jurisdictions that spend the smallest proportion of their budgets on family law legal aid, of the jurisdictions with these data, are Alberta and Manitoba, at 23 percent.

Per capita costs are also presented to give an indication of family legal aid costs relative to total population size. Of the jurisdictions for which this information is available, PEI spends the least amount on family legal aid services at $1.47 per person, and the Northwest Territories spends the most, at $12.82 per person. The Yukon ($7.60), British Columbia ($5.82), and Nova Scotia ($4.96) also have relatively high per capita costs.

Based on the materials provided by the provinces and territories, an overriding issue in every jurisdiction in Canada is a shortage of funding for the delivery of family law legal aid services. While several jurisdictions experienced decreases in the number of approved applications for family legal aid services in the late 1990s (e.g., Nova Scotia, Saskatchewan, New Brunswick and British Columbia), this cannot be equated with a reduced need for services. Rather, it appears that the number of approved applications is related to trends in expenditures. In British Columbia, for example, shortages for funding for legal aid led the Legal Services Commission to cut services in several areas in 1997/98. Eligibility levels were changed, coverage provisions were reduced, and tariff fees to lawyers were reduced by 5 percent (by increasing the holdback from 5 percent to 10 percent). It is not unlikely that, as awareness of cuts to legal aid funding spreads, individuals may be informally discouraged or screened before making a formal application.

In the materials provided by several jurisdictions, a lack of funding was identified as a significant policy change that may have affected service delivery (i.e., Prince Edward Island, Nova Scotia, Alberta, British Columbia, and Nunavut). Two provinces, Prince Edward Island (in the early 1990s) and British Columbia, specifically identified cutbacks in coverage provisions due to funding shortages.

Sufficient data are not available to compare the cost differences of the staff and judicare delivery models, and a comparison of quality of services in family law cases is clearly an important issue though beyond the scope of the present project. According to past Canadian research on criminal legal aid, the staff lawyer delivery model is less expensive than private bar delivery, and the quality of service provided by staff lawyers is equal to that provided by private lawyers (Currie 1999). However, the author notes that the issues in family law disputes may be more complex and emotionally charged than criminal law matters, and that family law cases may be more protracted, as disputes evolve over time. Therefore, the research on criminal legal aid delivery is not necessarily generally applicable to family law delivery models.

4.4 Trends in volumes and expenditures of family law legal aid services

There is a general downward trend in the number of approved applications for Nova Scotia and Saskatchewan, and a general upward trend for Ontario, Alberta, Prince Edward Island and the Yukon. New Brunswick experienced an increase in the number of approved applications from 1997/98 to 1999/2000, but then saw a sharp decline to numbers close to those of 1997/98. In Manitoba, the number of approved applications decreased from 1996/97 to 1997/98, increased to 1999/2000, and then decreased in 2000/01. Approved applications in British Columbia dropped from 1996/97 to 1998/99, and then increased to 2000/01. In Québec, it is interesting that the trends in volume for family law cases have shown decreases, while the volume of child protection cases has increased.

Nova Scotia, Québec and British Columbia are the only jurisdictions for which data are available that show a downward trend in expenditures, and Ontario, Alberta and Saskatchewan are the only jurisdictions that show an upward trend in expenditures. British Columbia, the Yukon and New Brunswick all experienced decreased expenditures from 1998/99 to 1999/2000, followed by increased expenditures in 2000/01. The trends in expenditures for Nova Scotia, Québec, Manitoba, British Columbia, the Northwest Territories and the Yukon mirror the trends in volume of approved family law legal aid applications.

While all jurisdictions in Canada are concerned with the state of family law legal aid services, there are some interesting developments taking place. The trend data on expenditures showed a fairly consistent decline during the latter 1990s. For most jurisdictions for which this information is available, however, expenditures in 2000/01 have increased. Some provinces and territories are in the process of expanding coverage provisions (i.e., the Yukon and British Columbia).

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