Chapter 10: Family Law Legal Aid Services
In this chapter we analyze the current models utilized for delivering family law legal aid services in Ontario and make several recommendations for their reform. The chapter begins with a brief description of the nature of, and need for, family law legal aid services and the current context in which these services are delivered. We then analyze the relative strengths and weaknesses of alternative delivery models for delivering family law legal aid services and outline a series of principles which we believe should guide the design of family law legal aid services in the future. We conclude this chapter by proposing a multifaceted, flexible model for delivering family law legal aid services which we believe will provide for sophisticated assessment of individual cases, early legal intervention in those cases, the provision of legal and non-legal assistance based on a prioritization of family law legal needs, and the coordination of the legal aid system with appropriate non-legal community service providers.
THE NATURE OF FAMILY LAW DISPUTES AND THE NEED FOR FAMILY LAW SERVICES
Family law attempts to provide an orderly and fair process for resolving family law disputes. Family law is "a system which can bring order to the chaos of domestic separation, one which can provide a means of resolving intensely competing personal demands in an equitable, rational, civil and non-violent way." The legal needs generated by the modern family law process are therefore, in large part, claims for legal assistance in reaching settlements that are informed, voluntary, and durable.
Family law requires people to use the legal system if they desire a binding solution to matters they are unable to resolve themselves. Effective access to the entitlements and remedies provided by the family law system requires legal assistance, which in the case of low-income individuals means legally aided assistance. The claim for an entitlement to legally aided services in family law matters rests on three factors: the complexity of the state-enacted legal regime; the significance of the interests that legal regime has been put in place to protect; and the potential for significant power imbalances between the parties to family law disputes.
Family law is exceedingly complex and subject to frequent legislative amendment. Specific legislative provisions relating to family law include the Divorce Act; the Children's Law Reform Act; the Family Law Act; the Family Responsibility and Support Arrears Enforcement Act; and Child and Family Services Act the Canada Pension Plan Act; and the Pension Benefit Act. The complexity of family law is compounded by the fact that most legislation in this field is comparatively recent.
Moreover, it is often difficult to determine just how conflictual and/or complex a family law case is likely to be. The progress of a family law case is very much a product of the approach of one or both of the parties. The complexity of a case is often a direct result of the degree of conflict in the parties' relationship. Clients will often not reveal crucial information until a relationship of trust has been developed with the lawyer. In this respect, family law is very different from criminal law, where the charges and the overall outline of the matter are usually known once the Crown has disclosed its case and the client has been interviewed. In family law, the legal issues are often not well defined in advance and must be determined as the matter proceeds. Similarly, circumstances may change if the attitude of one or both parties changes during the course of the proceeding.
Like criminal law, family law addresses issues of serious importance to individuals and society as a whole: In cases involving abuse, fundamental issues of bodily integrity and physical and psychological liberty are at stake. In child protection cases and many custody and access cases, the very existence of the parent-child relationship is at risk. Stable and safe custody and access arrangements for children after their parents' relationship has broken down is vital to the physical and psychological well-being of children. Support obligations are crucial determinants of a parent's and child's financial security. Support enforcement proceedings entail the risk of incarceration, and will soon include the possible loss of a driver's licence. Even uncontested divorces and adoptions involve important issues of formal legal status that determine a host of other legal entitlements and obligations.
Finally, the parties to family law disputes often encounter significant power imbalances. For example, child protection cases pit child-welfare agencies against parents. In the family law system, women who seek legal aid often have few financial resources when they confront their husbands, who have the financial resources to hire private lawyers to vigorously defend their interests. Many women's vulnerability in these situations is compounded by the disempowerment they have suffered as a result of abusive relationships.
Many of these issues-legal complexity, seriousness of consequences, and power imbalances-have a corollary in criminal law. As well, family law mirrors criminal law in one other important respect-much of the litigation in family courts is generated by the state. The state is a significant player within the family law system, particularly as that system touches low-income persons. The state initiates proceedings in order to protect its financial interest in controlling the costs of social assistance (given the strong linkage between default in support obligations and social assistance costs). The state has also largely assumed responsibility for enforcement of support through the Family Responsibility Office (formerly the Family Support Plan). The state and its agents are active participants within the family law system, acting to protect what are deemed to be significant social interests at stake in cases of family breakdown, including, but not limited to, child protection proceedings. Provincial Family Court Judges estimate that 50 per cent of the litigation in their courts is generated by institutional litigants.
We endorse the views of Professors Cossman and Rogerson on legal needs in family law matters:
There are no simple answers or quick-fix solutions to the problems of family law. Family law needs are complex, multidimensional and extremely widespread. Individuals with family law problems need legal assistance. There is no way to finesse the fact that family law problems are legal problems and need legal assistance. Family law cases vary enormously in their complexity, and the degree of conflict and power differentials between the parties, in ways that defy easy categorization and initial assessment.
As of 1990, the Plan provided fairly broad and comprehensive coverage of family law matters. If the financial-eligibility rules were met, certificates were available for a wide range of family law matters, although it was not always easy to find a lawyer willing to accept a certificate. Throughout this period, family law services were delivered almost exclusively through the judicare program. In the 1980s, the Plan began some innovative programs to deliver family law services more effectively, including its Victims of Spousal Assault Program, funding of mediation services, legal aid Settlement Conferences, and the institution of a "Green Form" program.
As discussed earlier in this report, in the early 1990s the Plan came under increasing pressure to control costs. In the family law field, the Plan took two steps. The first was to expand its successful Settlement Conference program. The second was to consider alternative models of delivering family law services. In November 1993, the Law Society approved two family law pilot projects-a limited-service Staff Office focusing on uncontested divorces and adoptions, and a full-service judicare-equivalent Staff Office. In June 1994, the Law Society approved a third pilot project-a Women's Family Law Centre that would focus on the legal and non-legal needs of abused women.
Of the three pilots, only the first, the Divorce Law Office, has opened, although with a significantly reduced mandate. The two remaining pilots were never implemented, even though the September 1994 Memorandum of Understanding provided that the Law Society would "continue to implement and evaluate the legal aid pilot projects approved by Convocation as of May 1994". In June 1995, a new provincial government was elected into office and, following some uncertainties regarding the future of the Plan, the other pilot projects were put on hold.
In April 1996, the Law Society imposed tariff cuts and a prioritization regime on both criminal and family certificates. Many argued that the implementation of these measures meant that family law services had suffered a "double cut" in relation to cuts to criminal services.
Under the new tariff which came into effect in family law, there were substantial reductions in the maximum billable hours allowable for family law matters. The basic allotment for family law proceedings and negotiation of domestic contracts, for example, went from a maximum of 15.0 hours to 6.5 hours, although additional hours are available in some circumstances.
The prioritization regime was intended to ensure that certificates were allocated to the most serious matters, and then in descending order of priority, until the available allocation of certificates was exhausted. As part of this exercise, some services were eliminated completely, notably divorces, except in cases of undue hardship; adoption; and change of name.
Priority One cases were determined to be those which involved "protecting the safety of a spouse or child who is at risk, or protecting an established parent/child bond (custody/child welfare)". Included in this priority were: (1) most child protection matters except for voluntary care agreements; (2) certain custody matters (including cases where the safety of a spouse or child, or an established parent-child bond is at risk or threatened, including the threat of kidnapping, and relocation where the parent-child bond is threatened; cases of sexual abuse; and cases where the parties are separating and no status quo has been established); (3) support matters where spousal or child support is essential to maintaining the parent-child bond or to ensure the necessities of life; (4) applications for access or variation of access where there is an allegation of assault or abuse; and (5) property cases involving the issue of exclusive possession where there are safety or abuse issues.
Priority Two covered custody variations where there is no emergency; initial applications for access to maintain an established parent-child bond; child or spousal support when custody has changed; support variations subject to a cost-benefit analysis; and support enforcement, if there is merit. Property cases involving preservation of property in the face of risk of dissipation, such as a spouse's business, also fell within this priority.
The Plan also established three other priorities, dealing with a variety of less serious matters.
At first, it was expected that the Plan would be able to grant 29,000 family law certificates in 1996/97, effectively covering both Priority One and Priority Two matters. This estimate was based on historical averages, which included a mix of complex and less complex cases. The estimated number of family law certificates was revised downward when it became clear that the most serious and complicated cases were also the most costly. As a result, in 1996/97 the Plan issued only 14,063 family law certificates. As a practical matter, certificates were available only for first priority matters. The contrast with previous years is striking. In the fiscal year 1993/94, 65,691 family law certificates were issued in the province. The number of family certificates has dropped to levels not seen since 1970.
The Plan has since acknowledged the severity of the impact of these measures on family law services and taken some corrective action. Approximately an additional $10 million annually for the next two years is being dedicated to family law. These funds will be used to increase the coverage of family law matters (including Priority Two cases) and to increase billable hours on the more complex cases. The Plan is also expanding its duty counsel services, with the objective of providing family law clients with more assistance in the form of advice and review of documents before they go to court.
CURRENT LEGAL NEEDS
The cuts to legal aid in family law occurred at the same time that other services available to assist low-income family law litigants were also being cut because of budgetary pressures. These cuts, which intensified the impact of the legal aid cuts, include: services for abused women, the Office of the Children's Lawyer, court intake workers, and programs providing service of family court documents.
The cuts to family legal aid services have had severe consequences on several levels. Many women who do receive a certificate have increased difficulty finding a lawyer who will accept it. Even after a woman finds a lawyer, the hours allowed on the certificate may run out with much more work remaining to be done. Finally, coverage remains uneven, even in the most serious cases involving abuse and threats to the safety of children, notwithstanding the clarification and expansion of coverage by the Plan in 1997/98.
The majority of low-income persons with family law cases who do not receive certificates would appear to be abandoning their claims, agreeing to whatever their former spouse or the state demands, or entering the family law system unrepresented. Many of the these litigants are dealing with serious issues of support, custody, and access. Because the parties have had no legal advice, they are unaware of the important legal, procedural, or evidentiary issues at stake in the proceeding. Pleadings and affidavits are often inadequately prepared. Unrepresented litigants are often reluctant to raise issues of violence in their pleadings. At the same time, lack of representation reduces settlement rates. Many cases that would have been settled if the parties had had lawyers now go to court.
The only legal assistance available to most unrepresented litigants is provided by duty counsel. Even then, duty counsel are not available to parties in proceedings in the Ontario Court (General Division), where a number of important family law issues are dealt with. In the remaining courts, duty counsel have assumed tasks far beyond their original purpose of providing summary advice and limited representation. Duty counsel have been thrust into the role of the parties' lawyers. They are being expected to interview clients, advise them on the filling-out of court documents, attempt to negotiate settlements, and argue matters before the courts, including participation in trials. Time constraints limit the quality of the assistance that can be provided. Clients may see a different duty counsel each time they appear in court. Moreover, the quality of duty counsel is uneven, and in some cases lack of time or expertise results in their giving inaccurate or misleading information.
Judges are being required to make important interim decisions about custody, access, and support on the basis of incomplete, untested, and possibly untrue evidence and the limited submissions of duty counsel. Property claims are often not pursued because they can be brought only in the General Division, where proceedings are more formal, expensive, and intimidating.
For all matters, the situation of unrepresented litigants is worse in the General Division than in the Provincial Court (Family Division). The formality of proceedings in the General Division is inhospitable to unrepresented litigants. Duty counsel are not available, and the process is very formal. Court administrative staff estimate that one-half of family law trials in the General Division now involve unrepresented litigants.
Trials with unrepresented litigants are a particular problem. Judges report that such trials often take twice as long as those in which counsel are present. Unlike many (if not most) unrepresented litigants, lawyers are often able to work out statements of undisputed facts and to narrow the issues for trial. Many of the efficiencies of case-management (which has enormous potential to expedite matters and save resources) are not realized when litigants are unrepresented. Time-saving procedures (such as presenting evidence-in-chief by way of affidavit) are much less likely to be utilized by unrepresented parties.
The increasing length and inefficiencies in family court proceedings increases costs not only for courts and their staff, but for institutional litigants such as the Ministry of Community and Social Services, the Children's Aid Society, and the Family Responsibility Office. As well, social assistance costs are increased if women are unable to access a share of property that might allow them to achieve financial independence, or if they receive a support award that is lower than might have been obtained with lawyer involvement. Further, if paternity is not established, the state may be required to assume responsibility for support of the child for 18 years. In the long term, the health care and criminal justice systems will bear the costs of not dealing appropriately with issues of family violence. Family law problems dealt with inappropriately do not disappear; they reappear in other forums. As a result, the ultimate cost of unrepresented litigants is often borne by other arms of the provincial government.
Our brief review of the state of family law legal aid services in Ontario confirms an overwhelming lack of access to legal services. This lack of accessibility has several dimensions-an insufficient number of certificates; an inadequate tariff; a lack of access to legal advice and information; and barriers relating to language and culture.
Unfortunately, even with full coverage of both Priority One and Priority Two matters, there are still significant gaps in coverage. Many important custody and access issues, for example, remain uncovered, including cases regarding mobility and relocation; denial of access; change from supervised to non-supervised access; and requests to shift from daytime to overnight access. As well, limitations on the number of funded hours for those cases that are covered often make it difficult to provide high-quality services.
Regardless of the level of funding, we believe that capped funding demands that resources be directed to the most compelling legal needs and that they be deployed in the most efficient manner possible. Doing so necessarily requires prioritization of legal needs and a detailed analysis of the most cost-effective means of providing specific services.
In this respect, we believe that the prioritization regime developed by the Plan represents a good start. We do not, however, either endorse the Plan's specific priority regime or offer another in its place. The legal aid system in Ontario should, in our view, move towards a regime which considers more than the abstract gravity of the case. In order to target services most effectively, the system will have to develop the capacity to assess the impact that a denial of services has on individual clients and to allocate resources accordingly.
There are several other difficulties with the Plan's family law priority regime and the current manner in which it delivers family law services. The most obvious problem is that clients with lower-priority problems currently receive little or no legal assistance. In the absence of early intervention and assistance, many of these litigants may return to the legal system (and legal aid) when their problems are considerably more complex, serious, and costly. As a result, these family law litigants may lose the opportunity to resolve their cases at an early stage and at low cost.
At the same time, a program which expects savings through severe constraints on the hours available to work under the tariff, yet relies almost exclusively on lawyers to provide all services, runs the risk of underfunding counsel to a point where it is impossible to obtain quality service. Alternatively, underfunding of the tariff places unacceptable burdens on counsel to absorb the cost of providing services. Clearly, this situation is not sustainable in the long run. Unfortunately, numerous submissions to the Review noted that many experienced family law practitioners are now refusing to accept certificates for these reasons.
As a result, the family law legal aid system needs to develop new approaches to delivering services in addition to its prioritization by case type and cuts to the number of certificates and the tariff. The system must seriously consider redesigning or reconfiguring its delivery models. The goal of the family law legal aid program should be to design a delivery system dedicated to providing effective assistance to as many clients as possible, using whichever means can best provide a high-quality cost-effective service under the circumstances. For example, if the system increased the use of supervised paralegals for certain matters, savings achieved in those contexts could be used to increase the resources available for funding tariff services.
In the context of family law, we do not believe that any single delivery model can guarantee the delivery of legal aid in a manner that fully ensures the equally compelling priorities of cost-efficiency, high quality, and accessibility. Below, we summarize our conclusions about the strengths and weaknesses of alternative means of delivering family law services.
The judicare model has consistently been defended by the majority of family law practitioners as the best method of delivering legal services. In theory, the judicare model promotes choice of counsel and access to specialized and expert service providers in the private bar. Both of these attributes are significant to family law clients, given the preponderance of complex, serious, and deeply personal legal proceedings in that area of law.
There are, however, serious concerns about the ability of many family law clients to make informed decisions about their choice of counsel. Family law clients often simply do not know how choose a lawyer. Even if they do, the lawyer of choice may not be willing to accept a legal aid retainer. Moreover, there is no requirement that lawyers offering judicare services have training or experience in family law or the necessary training to address the complex emotional, financial, and non-family legal needs which often accompany family law issues, or the diversity of the backgrounds and needs of clients. The advantage of choice of counsel within a judicare model is thus counterbalanced by problems of quality and access to counsel.
In view of judicare's many advantages, we strongly believe that a reformed legal aid system should continue to utilize private lawyers as a primary means of delivering family law legal aid services in Ontario, provided that appropriate quality-assurance systems are put in place, along with mechanisms to ensure work is done cost-effectively.
Studies suggest that Staff Offices are more accessible for low-income clients than are private lawyers, particularly in urban areas. In fact, the Canadian Bar Association study concluded that the "second greatest barrier to access to legal aid is the selection of a judicare model for the delivery of legal aid services". Staff Offices, by contrast, offer "a highly visible presence for a legal aid plan, with a known location and a single stop for clients." Accordingly, the availability of Staff Offices is likely to assist prospective family law clients to know where to go to obtain legal services and to overcome some of the problems associated with selecting their own counsel.
Staff Offices can easily employ and utilize an array of non-lawyer professionals, such as supervised paralegals and family counsellors, who can deliver specific services more cost-effectively than can lawyers. Staff Offices have the potential to work well with-and sometimes be co-located with-a range of community and other agencies providing services needed by family law legal aid clients. Staff Offices can also be in a position to facilitate referrals to, work with, or be co-located with other parts of the legal aid system, such as an intake office or a community legal clinic. These linkages would make it easier to comprehensively assist a family law client with a variety of legal and non-legal needs.
There are, however, serious concerns with the quality of service that a Staff Office can deliver if no provisions are made to limit the case-load. A Staff Office may also restrict choice of counsel, resulting in a possible "two-tier" model of representation. Moreover, a family law system based entirely on a staff model would present serious conflict-of-interest problems if both parties in a proceeding were legally aided. It is inappropriate for a single Staff Office to represent both sides of a family dispute. At the same time, it would be prohibitively expensive to maintain more than one Staff Office in many smaller communities.
COMMUNITY LEGAL CLINICS
Although community clinics may appear to offer some advantages in delivering family law services, the disadvantages of this model outweigh any apparent advantages in relation to individual case work. The advantages are said to flow from the fact that family law issues often intersect with "poverty law" issues. Community clinics may be able to develop integrated, community-based responses to the full range of a client's legal and non-legal needs.
However, we are concerned that the need for family law services would overwhelm the clinic system's ability to deliver "poverty law" services, for which no other service providers exist. Questions also remain as to how family law services might be addressed in a community governance model, given that family law matters often pit one family member against another. Reliance on community clinics for family law services also raises conflict-of-interest issues.
We discuss the issue of community-clinic delivery of family law services in detail in chapter 11. As noted there, we recommend that clinics not provide direct family law services, except in exceptional circumstances, such as geographic remoteness.
In our view, the advantages claimed for clinics doing this work could be achieved by locating duty counsel or a satellite of a family Staff Office within or near a community clinic. Doing so would facilitate access, allow for easy referrals from the clinic staff lawyers and community legal workers, and permit identification and resolution of systemic issues relating to both "poverty law" and family law, without raising the concerns inherent in attempting to move family work directly into the clinics.
Duty counsel at present provide important family law services. An expanded use of duty counsel offers potential advantages for delivering some limited types of family law legal aid services, particularly if combined in an office with other service providers, such as supervised paralegals. We have concluded, however, that even an expanded duty counsel system should continue to focus on routine and brief matters which can be handled professionally with limited case preparation.
Block contracting of legal services is premised on a belief in the cost-effectiveness of undertaking numerous repetitive and predictable transactions. By way of contrast, the relative seriousness and complexity of an individual family law case is often difficult to predict. As a result, block contracting does not appear to be appropriate for family law matters.
Family law is a particularly problematic area for independent paralegals. Legal problems in family law are highly complex, volatile, and of extraordinary importance to the parties involved. The lack of accountability and quality control of independent paralegals poses very real risks to family law clients, who are very often themselves unlikely to fully appreciate or understand the complexity or long term consequences of their legal issues.
Supervised paralegals, however, could assume a much larger role in the delivery of legally aid family law services, particularly in Staff Offices and in an expanded duty counsel office. Many private counsel use paralegals for a range of family law tasks. It may be possible to encourage an increase in the use of paralegals by private counsel in the delivery of legally aid services-for example, in the initial interviews with clients and/or intake-and thereby make use of lawyer's time on a certificate more efficient. The experience of paralegals within the Divorce Law Office, as well as the extensive use of community legal workers in the clinic system, suggests that supervised paralegals can make an important contribution to the efficient and expeditious delivery of high-quality family law services.
PUBLIC LEGAL EDUCATION
Public legal education, including seminars, informational videos, and self-help guides, should be an important component of a family law legal aid model. Area Offices, Staff Offices, and/or expanded duty counsel offices, as well as court administration offices, should have more informational materials available for family law litigants.
Public legal education must not be seen as a delivery model in its own right, but rather as a potentially important supplement to existing legal services. Public legal education cannot replace the need for lawyers within the family law legal aid system. In all but the simplest of procedures, such as uncontested divorces (assuming there are no other legal issues present), most family law litigants will need at least some degree of legal assistance. Indeed, there are at present many successful examples of public legal education materials being used in family law matters in Ontario.
An individual's ability to access and use the materials will depend on his or her literacy and educational levels. Nonetheless, public legal education may be able to improve the way in which these litigants are able to use the legal assistance available to them. For example, public legal information could be made available in a number of languages, even though individuals would still need to complete court forms in English or, in some cases, French.
PROPOSAL FOR A DELIVERY FRAMEWORK FOR FAMILY LEGAL AID SERVICES
As a starting point, we have identified several basic principles which we believe are fundamental to the successful design of a family law legal aid system in a capped funding regime. We stress that these principles, and this proposal as a whole, must be read in the context of the client needs and impact-centred priority-setting process we recommended in chapter 8. The principles are as follows:
- The system should provide early, sophisticated assessment of each case and the services it requires. The system must encourage early legal intervention, emphasizing advice, mediation, settlement and resolution where appropriate.
- The system should provide different degrees of legal assistance, based on the prioritization of legal needs, client circumstances, and potential individual and systemic impact.
- The system should have the flexibility to address simple matters efficiently and quickly, and enable emergency or complex cases to be referred to more extensive legal assistance and representation.
- Given the multifaceted nature of many family law needs, the legal aid system should be able to coordinate its services with non-legal community service providers.
- The system should provide services through a much broader range of delivery models, using private lawyers, some Staff Offices, an expanded duty counsel program, both private and staff lawyers, supervised paralegals and other non-lawyer professionals, and public legal education.
- In order to improve the impact and cost-effectiveness of legal aid services, the system should have a centralized capacity to support the services it provides, including a capacity to identify and advocate changes to the family law legal and procedural framework, and to related services.
- The system must ensure that the services it provides are of high-quality.
Briefly summarized, our proposed system consists of several linked and coordinated delivery models, including continued significant reliance upon judicare, the development of a series of Staff Offices across the province, expanded duty counsel services, increased use of non-lawyer professionals and public education materials, a sophisticated intake and case-assessment function, effective coordination with other services, and a case-management and quality-control program for services provided by both staff and private bar. This proposal is organized to take advantage of the strengths of each respective model. Service providers within this proposal include private and staff lawyers, supervised paralegals, social workers and other non-legal professionals, community agencies, duty counsel, and, for some purposes, community legal clinics.
By way of introduction, we should note that this proposal is based on a variety of sources, including the proposals outlined by Professors Brenda Cossman and Carol Rogerson in the background paper they prepared for the Review. Significant parts of this proposal also resemble the Family Case Management Program (FCMP) instituted by the British Columbia Legal Services Society in 1994.
The FCMP is essentially a process for "streaming" family law clients, depending on their legal needs. The FCMP has been used successfully both to reduce costs per case and to improve support for lengthy cases. The program has managed to meet both goals because it is structured in such a way that most cases are resolved either at the advice stage or within the limits of a limited retainer granted for non-emergency legal matters. The program also addressed complaints that the British Columbia Legal Services Society was funding too many cases that were merely vexatious or were being pursued to unreasonable extents or that people would not be pursuing if they were paying for their own legal action. As of September 1996, officials in British Columbia report that their case-management program had effected a 15 per cent cost reduction and improved funding for complex cases.
Key components of our proposal include a special certificate or retainer for "emergency" family law matters and a sophisticated case-assessment/intake function for the full range of "non-emergency" legal needs. Specific programs included in our model include a significant summary legal advice program; a case-management program for delivery of legal aid services by either private or staff lawyers; and an expanded duty counsel program.
One strength of our proposal is its ability to adapt to changing needs of the legal aid system and to operate within a capped budget. Legal aid administrators can expand or contract coverage, depending on the funding available, confident that the highest priorities are being addressed by the most effective means possible.
As in the case for criminal law legal aid services, our proposal for the delivery of family law services is dependent upon the development of a sophisticated case-assessment and intake capacity. In family law matters, the case-assessment/intake function would begin when the applicant enters one of the Area Offices (or one of its satellites) described in chapter 9. Intake services could also be undertaken by Staff Offices or the duty counsel office, which, if linked electronically to Area Offices, would be able to provide or facilitate access to many of functions performed by Area Offices.
In family law matters, the first priority for intake staff would be to determine if the matter was an "emergency." These are cases in which any delay in the provision of at least some form of legal assistance could have irreparable, serious consequences for the person involved, or for his or her family. Matters which could be considered "emergencies" include those where there is a threat to the safety of a spouse or child or a serious threat to the parent-child bond, such as custody and access cases involving abduction or kidnapping, and child protection cases where the child is at risk of being removed from the parents or has been removed. (Of course, other matters may be determined to be emergency cases, depending on the specific circumstances of the person involved.)
Where an "emergency" is identified, we recommend that the Area Office be authorized to provide a limited amount of legally aided assistance immediately. In the interests of speed and accessibility, we would also recommend that other legal aid offices, including Staff Offices and/or duty counsel offices, be allowed to authorize or provide "emergency" legal assistance. This legal assistance could be in the form of either an interim "emergency services" certificate or the provision of a limited amount of legal services within a Staff Office or duty counsel office until such time as the individual's situation had stabilized.
Given the need to address such matters urgently, we would not normally subject applicants whose situations fell into this category to a full legal or financial assessment at this stage. Rather, we would undertake a more complete intake interview and assessment after the situation had stabilized. Depending on these circumstances, however, this assessment could be undertaken prior to the situation stabilizing.
In order for this program to be successful, the legal aid system will have to continue its close working relationships with the many community agencies which already provide emergency services to this population, including shelters and other family crisis centres. The goal of this program would be to make the legal aid system an effective component of the larger network of family emergency services.
In "emergency" cases, the applicant should be provided counsel of choice and be referred to legal assistance immediately. Clients who choose to see a private lawyer should be assisted in exercising their choice, including the use of approved lists of qualified service providers.
In cases judged not to be emergencies (or where the situation had stabilized), we would subject each applicant to a full case-assessment and intake process.
The purpose of the case-assessment/intake function would be to assess accurately the legal needs and personal circumstances of the individual applicant on a number of different grounds. Is the person financially eligible for legal aid services? What are the person's legal needs? What are the person's personal circumstances? Are that person's legal needs "covered" by the legal aid program? Does the person have, in addition to legal needs, non-legal needs which require assistance from a community agency or government department? The legal aid system must undertake an analysis of each individual applicant against these criteria in order to allocate the legal resources appropriate to that person's individual circumstances.
In the family law context, it may be difficult to design a system with a single point of first contact at which all intake and assessment can be conducted. For example, a family law litigant may approach a Staff Office, a duty counsel office, a community legal clinic, or an Area Office in the first instance. We believe, however, that an Area Office (or one of its satellites) will be better placed than others to perform this intake and assessment function.
Upon entering an Area Office, an individual would be interviewed by a trained paralegal, supported by social workers and/or staff lawyers as necessary. The intake worker would interview the applicant in order to conduct a financial-eligibility assessment and prepare a preliminary assessment of the case. Intake workers' decisions on questions of coverage would be supervised by staff lawyers and plan administrators to ensure coverage rules are being applied consistently and accurately.
Applicants who are not financially eligible for legal aid assistance may still be provided with public legal education materials, or referrals to other agencies or to a member of the private bar.
Based upon this initial interview, it may be clear that the person's case does not really involve a legal issue at all. The person could then be diverted to non-legal service providers, such as a shelter or a government agency, depending upon the person's circumstances. Clients who are diverted to other agencies would be told that that they could return to legal aid if and when their matters assumed a legal dimension.
TARGETED LEGAL ASSISTANCE
Persons who are financially eligible for legal aid and whose legal matter is covered by the legal aid program could be provided a range of legal services, including representation on a solicitor/client basis (by way of either a legal aid certificate or a Staff Office), with summary legal advice, or a referral to duty counsel, depending on their personal legal needs.
Needless to say, the determination of which services are appropriate for specific needs is complex. Given the wide range of family law issues and the need to analyse those issues in the context of each applicant's specific circumstances, we are not in a position to provide a comprehensive guide as to how to match services to needs. Below, we discuss a range of models for providing family law legal assistance and make some general recommendations regarding their operation and relationship to one another.
Our proposal for family law duty counsel would not significantly expand the current mandate of family law duty counsel. Our primary recommendation on this subject is to increase significantly the number of duty counsel available to provide the services now offered for family law proceedings. Expanding the number and availability of duty counsel could allow more individuals with family law disputes to receive early legal advice, which might in turn facilitate the earlier resolution of their disputes. More duty counsel available for advice and assistance with court documentation might be able to address some of the significant gaps in the current system. Establishing a permanent duty counsel office (located, for example, at the Area Office, or the courthouse) could help address problems of accessibility-low-income family law litigants would know where to go to find legal assistance, especially in the absence of a Staff Office in a particular community. A further expansion of duty counsel to include a permanent duty counsel staff might also be able to address the existing problems resulting from lack of continuity in duty counsel.
In court, the assistance provided by duty counsel should continue to be limited to relatively simple, short-term, interim matters. Most significantly, duty counsel should not be allowed to conduct family law trials, given the limited time they have to prepare for a case and limited contact they have with litigants. Duty counsel involvement should be limited in other proceedings as well. For example, in child protection proceedings, duty counsel should likely be doing no more than advising parties of their rights, cautioning against signing consents, and assisting in adjournments.
An expanded duty counsel service could also integrate the use of supervised paralegals. Supervised paralegals might be able to assist unrepresented litigants in preparing their legal documents prior to seeing duty counsel. Supervised paralegals could review and prepare court documentation, allowing duty counsel to focus their limited time on more effectively advising, representing, and otherwise assisting unrepresented litigants.
For matters which do not require solicitor-client case representation, we believe that financially eligible applicants should be provided with summary advice in the entire range of family law matters.
In our view, an opportunity to access summary advice prior to any court appearance would go a long way to address the unmet legal needs of the majority of family law litigants. At the moment, unrepresented litigants have a range of limited and unsatisfactory options. They can appear unrepresented in court and receive the minimal legal assistance through duty counsel, or they can walk away from the matter, or they can agree to whatever proposal is put before them by the opposing party (whether it be the former spouse or a government agency).
Many family matters can be addressed in the first instance, given sufficient and competent legal advice/information. Many would-be family law litigants are seeking information on matters about which they have not yet made a decision. For example, a woman may be considering leaving her husband, but will want to know the rules regarding custody and access. In the past, this woman may have been granted a certificate, even though she had not yet made a final decision. It may be more appropriate to give her summary advice or public-education materials before more extensive forms of legal assistance are provided.
An early legal advice program could also include assistance with court documentation and settlement issues in uncomplicated matters. For example, a person could receive advice regarding an uncontested divorce. Alternatively, minor, relatively simple variation applications and support applications involving COMSOC, and the defence of support enforcement proceedings, may be adequately assisted through this early legal advice program. Legal advice may also be appropriate for uncomplicated custody, access, and support cases. The potential for addressing support applications in this manner is especially promising, given the recently enacted child support guidelines.
A person receiving advice at this stage could also be provided with a referral to an expanded duty counsel office, which may then provide limited representation on consent matters, adjournments, and so on.
Our preference would be to have the advice program available in the same location as the intake function. Regardless of its location, the advice providers would have to understand and be able to communicate the applicable legal principles; have significant knowledge of, and connections to, non-legal community service agencies; and have training in cultural and linguistic interpretation. It would be necessary for the office to have significant public education materials available in a range of languages.
The advice component of this program would build upon and expand many programs already offered by the Plan, including its duty counsel clinic program and its "advice" certificates. It is also similar to the advice program offered by the British Columbia Legal Services Society.
During the course of providing summary legal information, it may be apparent that more extensive forms legal assistance are required. In these cases, whoever is providing summary legal advice should refer the person to an appropriate office in order to make an application for more intensive forms of legal assistance.
In instances where individual case representation is appropriate, the client would be provided with a limited retainer for either a private or a staff lawyer. The purpose of the initial retainer would be to provide clients with limited representation in order to offer analysis and advice in regard to their legal problems. The limited retainer would also enable counsel to take any necessary steps, within the limits of the retainer, to resolve these legal issues for their clients.
As in our model for delivering criminal law legal aid services, family law case- representation services should be provided by both private and, when available, staff lawyers. In order to enhance the quality of family law services and to facilitate the trust and rapport necessary between a family law client and his or her counsel, we would allow the client to choose between private and staff representation. Choice of counsel would also introduce a limited form of competition between alternative service providers, thus allowing the legal aid administration to assess more accurately private versus staff delivery of similar services.
If a client's case cannot be resolved within the limits of the initial referral, the staff or private lawyer could submit an opinion letter outlining the additional services necessary. Upon receipt of the letter, legal aid administrators would determine whether or not to approve further service, and, if approval is granted, could establish a case-management plan.
The case-management program we propose can, and should, work in conjunction with many existing programs to deliver family law legal aid services, including the Plan's successful Settlement Conference program and various mediation programs. The design of the case-management program should allow parties to utilize Settlement Conferences, mediation, and other forms of alternative dispute resolution, or any other forum for resolving family disputes in circumstances where it would be appropriate to do so, as well as establishing standards and checkpoints for service delivery.
We anticipate that a very broad range of custody, access, and support cases could be addressed through an initial retainer. In British Columbia, the initial retainer is limited to six hours. B.C. officials report that the majority of non-emergency cases are resolved within this retainer, as lawyers are able to provide targeted assistance. Overall, the FCMP has led to a 15 per cent reduction in cost per case.
Given the justifications outlined in this chapter and in chapter 8, we believe that a reformed legal aid system should continue to utilise private lawyers as a primary means of delivering family law legal aid services in Ontario, provided that appropriate quality-assurance systems are put in place, along with mechanisms to ensure work is done cost-effectively. Some of the quality-assurance mechanisms which may be appropriate for private lawyers providing family law legal aid services are discussed in chapter 7 and in the background paper prepared for the Review on this subject by Sandra Wain.
As in the criminal law context, we recommend that family law legal aid services provided by members of the private bar be supplemented with a number of central supports in order to improve the overall quality of those services and to make their delivery more cost-effective. We would provide private lawyers with access to the dedicated research facility at the provincial office and to client-support facilities which we would expect to develop in family law Staff Offices. Access to the specialized research undertaken in a Staff Office would facilitate improved representation of individual clients and assist in the continuing education of the private bar in this complex and frequently changing area of law. We would make the research facilities available to private practitioners at every stage of a family law proceeding, including on appeals. Access to client-support facilities (such as paralegals, interpreters, social workers, and links to community networks) would improve a private lawyer's ability to meet the multifaceted non-legal needs of many family law litigants and would allow those lawyers to concentrate more fully on addressing their specific legal needs.
We also believe that Staff Offices should assume important responsibilities for delivering case-representation services. Staff Offices are in a particularly strong position to employ and utilize an array of non-lawyer professionals, such as supervised paralegals and family counsellors, who can deliver specific services more cost-effectively than can private lawyers. Staff Offices also have the potential to work well with community and other agencies providing services needed by family law legal aid clients. Moreover, Staff Offices are in a position to facilitate referrals to, work with, or be co-located with other parts of the legal aid system, such as an intake office or a community legal clinic or a young offender office. These linkages would make it easier to comprehensively assist a family law client with a variety of legal needs. Staff Offices will be successful, however, only where provision is made to limit case-load, assure quality, and refer conflicts of interest to the private bar.
Public Legal Education
While informational materials need to be made available throughout the family law system, the Plan could focus public-education efforts on the particular family law needs of low-income clients. These public-education materials could be made available through Area Offices, family court offices, Staff Offices, and/or community clinics. Materials should be made available at the point of first contact with the legal aid or family justice system, to ensure that individual litigants are as informed as possible, as early as possible in their proceedings. Further, there may be an important role for community clinics in relation to public legal education. Community clinics may be uniquely qualified to develop and disseminate family law materials that are responsive to the particular family law needs of local communities.
We conclude this chapter with two final observations. First, we believe that the process for involving the private bar in the decision-making process for family law legal aid issues is just as pressing as for criminal law legal aid issues. As a result, we recommend that Family Bar Advisory Committees be established in the same manner as Defense Bar Advisory Committees. Second, we believe that the process for undertaking internal appeals of family law legal aid decisions made by Area Directors should be the same as for criminal law legal aid appeals. Both of these issues are discussed in more detail in chapter 9.
1. Legal aid administrators should implement a flexible and locally responsive model for the delivery of family law legal aid services that will allow administrators, service providers, and clients to develop service-delivery options that maximize the volume of high-quality services that can be sustained within a capped budget.
2. The legal aid authority should develop an effective way of assessing prospective family law clients' needs as individuals and of setting priorities among those needs based on the impact of the provision or the withholding of services in the circumstances.
3. Legal aid administrators should diversify the mix of service-delivery models used to provide family law legal aid services in Ontario as follows:
(a) private judicare lawyers should continue to be a primary provider of services;
(b) the legal aid system in Ontario should develop a limited number of Staff Offices. These offices should be staffed by lawyers, supervised paralegals, counsellors, and administrative personnel. These offices should be modelled on the full-service pilot approved by the Law Society in 1994. At least one Staff Office should be modelled on the Women's Family Law Centre pilot approved by the Law Society in 1993;
(c) community clinics should not be used to provide family law legal aid services directly, except in exceptional circumstances, although family Staff Offices should consider co-locating with, or locating near, community clinics;
(d) the legal aid system should develop an expanded duty counsel program for the delivery of family law services;
(e) block contracting should not be used as a means to deliver family law legal aid services;
(f) the use of supervised paralegals in providing family law services should be significantly enhanced, to support and assist the work of private, staff, and duty counsel lawyers, and to perform work which does not require lawyer involvement;
(g) Area Offices, Staff Offices, and/or expanded duty counsel offices should have more public-education materials available for family law litigants. These materials, prepared in a variety of languages, should be made available at the first point of contact.
4. The legal aid system should provide a special certificate or retainer to address "emergency" family law matters; a sophisticated case-assessment/intake function to assess and address the full range of "non-emergency" legal needs in light of established priorities; a significant summary legal advice program; a case-management program for legal aid services delivered by either private or staff lawyers; and an expanded duty counsel program.
5. The case-assessment/intake function for family law matters should begin when an applicant enters an Area Office (or one of its satellites), with some intake services being available at Staff Offices or duty counsel offices or, in some instances or at some locations, community clinics. These alternative intake offices should be linked electronically to Area Offices in order to provide access or linkages to many of the same functions performed by Area Offices.
6. The structure of service delivery for "emergency" legal assistance in family law cases should be as follows:
(a) The legal aid system should provide immediate "emergency" legal assistance in instances where a delay in the provision of at least some form of legal assistance could have irreparable, serious consequences for the person involved, or for his or her family. Other legal aid offices, including Staff Offices, duty counsel offices, or community clinics, should be allowed to authorize "emergency" legal assistance in the absence of an accessible Area Office.
(b) "Emergency" legal aid assistance should be in the form of either an interim "emergency services" certificate or the provision of a limited amount of legal services within a Staff Office or duty counsel office until such time as the individual's situation has stabilized.
(c) Individuals who need emergency legal assistance should not normally be subject to a full legal or financial assessment at this stage. Rather, in most cases, the individual should undergo a more complete intake interview and assessment as soon as the situation has been stabilized.
7. In cases judged not to be emergencies (or where the situation has stabilized), each applicant should be subject to a full case-assessment and intake process, including a test for financial eligibility.
8. Applicants who are not financially eligible for legal aid assistance or whose issue does not fall within the legal aid system's services or priorities should be provided with public-education materials, or referral to other agencies or, through the Lawyer Referral Service, to a member of the private bar, as appropriate. Applicants who are diverted to other agencies should be told that that they could return to legal aid if and when their matters assumed a legal dimension.
9. Applicants who are financially eligible for legal aid and whose legal matter is covered by the legal aid program should be provided a range of legal services, including representation on a solicitor/client basis by way of either a legal aid certificate or a Staff Office; summary legal advice in the entire range of family law matters; or referrals to duty counsel, depending on their personal legal needs.
10. The number of duty counsel available for family law proceedings should be significantly increased, in the form of a permanent duty counsel office located at either an Area Office or a local courthouse, where financially feasible.
11. The summary advice program should work in conjunction with the expanded duty counsel program in order to assist clients to utilize duty counsel effectively on consent matters and adjournments once they have received summary legal advice or help with court forms. The person providing summary legal advice should assist a client in making an application for more intensive forms of legal assistance, should that assistance prove necessary during the course of providing summary advice.
12. In cases where individual case representation is appropriate, the client should be provided with an initial, limited retainer for either a private or staff lawyer. The client should be allowed to choose whether that retainer is taken to a private or staff lawyer. If a client's case cannot be resolved within the limits of the initial referral, the staff or private lawyer should be authorized to submit an opinion letter outlining the additional services necessary. Upon receipt of the letter, legal aid administrators should determine whether or not to approve further services under a case-management plan.
13. The services provided by private lawyers, staff lawyers, duty counsel, and other staff should be subject to appropriate quality-assurance mechanisms. Standards should be set for lawyers wishing to be on panels to accept legal aid certificates.
14. Family law legal aid services provided by members of the private bar should be supplemented with a number of central supports, including access to dedicated research and other central services, and to client-support facilities in family law Staff Offices. Staff Offices should also develop strong linkages with community and other agencies providing services needed by family law legal aid clients and to other legal aid offices dealing with related issues such as young offender matters.
15. The family law case-management program should be designed to work in conjunction with many existing programs to deliver family law legal aid services, including the Plan's successful Settlement Conference program and various mediation and other programs, if appropriate.
16. A Family Bar Advisory Committee should be set up in each community, made up of members of the local family bar who will provide assistance to the local Area Director or senior officials within the legal aid authority:
(a) advising on guidelines for the Area Director in relation to discretionary decisions;
(b) advising on law and procedural reforms; and
(c) advising on case-management standards, quality assurance and mentoring programs.
17. Where the Area Director makes a determination about whether a case is covered or which delivery model is appropriate, the Area Committee should hear appeals from such determinations. Where there is a decision that it is not appropriate for a client to change his or her counsel, an appeal could also be taken to the Area Committee. Where there is a decision by the Area Director to strike a lawyer off the local legal aid panel, an appeal could be taken to the Provincial Director. The Provincial Director's decision not to authorize an appeal to the Court of Appeal for Ontario or the Supreme Court of Canada would be reviewable by a subcommittee of the governing authority.