Board advisory committees

Meeting of the Legal Aid Ontario family law advisory committee to the Board on March 21, 2016

Committee members

John McCamus (Chair); Nicholas Bala; Leighann Burns; Pam Cross; Nikki Gershbain; Jean Hyndman; Lucy McSweeney; Laure Prvost; Joanna Radbord; Louise Toone; Carol Hartman (LAO Board liaison).

Guest

Emma Barz

1. Welcome and introductions

The Chair opened the meeting and welcomed those present.

2. Minutes, September 30, 2015

The minutes of the September 30, 2015 meeting were approved.

3. LAO business planning slide deck and discussion

The Chair presented an overview of the LAO updates and proposed priorities for 2017/2018 slide deck, which includes highlights of the current LAO business plan and updates on major initiatives at LAO. It was noted that the spring committee meetings focus on environmental scanning and are very helpful to LAO as it prepares its scan for the next business plan.

Recent developments at LAO include the LAO Boards approval, following consultations with the committees at the fall 2015 meetings, of the posting of advisory committee minutes on the LAO website. The committees made several recommendations which the Board has adopted, including that the minutes:

  • will be circulated for approval prior to posting
  • will not contain confidential information or members contact information
  • will not attribute comments to individual members or record attendance.

The initial proposal involved the creation of two sets of minutes, but they are so similar that only one set will likely be prepared in the future. Any confidential information will be provided to the Board in a separate covering report. It is expected that the names of current members will be listed on the LAO website, along with one or two sentences of biographical information.

David Field was appointed as LAOs new President and CEO, following Bob Wards retirement at the end of 2015. David Field has been a vice president at LAO, where he was in charge of business planning. He was also at the Ministry of the Attorney General, where he was on the team that created the legislation that established LAO.

New funding for increased financial eligibility for legal aid continues to be the biggest story at LAO. The eligibility standard was reduced in the 1990s and was not adjusted for 20 years. As a result, half of Ontarios population with incomes under Statistics Canadas Low Income Measure (LIM) were no longer eligible. LAO submitted a business case for regular incremental increases that would, over time, raise the eligibility standard to LIM. This plan was accepted in 2014 and the third six per cent increase to the eligibility guidelines will be coming into effect on April 1, 2016. LAO is hopeful of a commitment to further annual increases.

A condition of receiving the new funding was that it would be spent on services for newly eligible clients. The province agreed to LAOs proposal that this include expansion of eligibility to new types of cases, and legal eligibility was therefore expanded in June 2015 to a number of new areas. As a result of the increases, LAO expects to issue approximately 20,000 additional certificates this year. The LAO updates and proposed priorities for 2017/2018 slide deck indicates where the increases have been most significant.

Legal clinics are receiving a proportional share—roughly 20 per cent—of the new funding. Ten million dollars is being allocated to clinics in this fiscal year, based in part on demographic considerations relating to the distribution of the low-income population. The remaining $3.3 million will be distributed through a provincial fund for new services.

LAO is participating in a number of family and criminal law justice system improvement initiatives, including the Attorney Generals Justice Roundtables. In February, LAO was invited to make a presentation to a Senate committee investigating delays in the criminal justice system.

LAO is continuing its focus on service improvement through the vehicle of priority strategies. The strategies establish attainable objectives on an annual basis, as follows:

  • LAOs first experience with a strategy for a vulnerable client group was with the Aboriginal Justice Strategy.

  • Its success prompted the development of the Mental Health Strategy, which has just been released and is now posted on the LAO website.

  • Mental health is an issue across all areas of law, including criminal, family and poverty law, and LAO believes that the new strategy will make a real difference. The Mental Health Strategy was launched at Sound Times, where LAO is establishing an embedded counsel project.

  • Other initiatives that are under development include a mental health appeals program and a training program.

  • The Domestic Violence Strategy is currently in the consultation stage, and LAO staff have been provided with domestic violence awareness training.

  • A new Bail Strategy is starting to be developed.

  • The LAO Board has also recently approved the development of a Racialized Communities Strategy and a Prison Law Strategy. A start has already been made in the area of prison law, with the approval of a new test case strategy for prison law matters, focusing on priority issues including segregation and access to medical and mental health treatment.

The LAO updates and proposed priorities for 2017/2018 slide deck contains highlights of the current business plan, which was submitted to the government in December 2015. LAOs business plans have not been public documents before, but a public plan will soon be posted on LAOs website.

Committee members provided input and advice. The views expressed below do not necessarily reflect the views of every member:

  • Members were pleased to hear that the priorities for LAOs prison law test case strategy include a focus on segregation. There is a growing understanding of how mental health issues are exacerbated by segregation.

  • A focus on youth should form part of LAOs prison law strategy, and the needs of people held in youth custody facilities should be considered under the strategy.

  • The committee was interested in LAOs work in strengthening panel management, including the recent experience with re-enrolling the refugee law panel (LAO confirmed that 259 of the 383 lawyers who applied for re-enrollment had been approved, some with conditions, as of early March, 2016. The former panel had 444 members). Training was felt to be a very important component. Application of heightened scrutiny was also suggested where lawyers are working with youth.

4. Family law update and discussion

An update was provided on LAOs family law initiatives.

In 2014, LAO provided funding to six Student Legal Aid Service Societies (SLASS) to support the provision of family law services by the SLASS. LAO worked with the SLASS, with Pro Bono Students Canada (PBSC) and the Law Society of Upper Canada (LSUC) to clarify the rules around experiential learning. Some key milestones:

  • In June 2015, the LSUCs by-laws were amended to allow students to provide family law services under the supervision of a lawyer.

  • In October, LAO sent additional submissions to the LSUC, asking that LAOs summer students be included under the by-laws as well.

  • LAO worked with the Office of the Chief Justice of the Ontario Court of Justice on guidelines for students appearing before that court, and these were finalized in August 2015.

LAO will be meeting with the SLASS to discuss the family law programs and their sustainability, as the funding that supports these services was one-time funding for three years and is now coming to an end. Sustainability was a factor for all of the projects supported by the three-year funding, and LAO is having these sustainability conversations with other recipients.

In 2014, LAO introduced reforms to the child protection tariff, and is now in the process of looking at and costing potential ideas for domestic family law tariff reform. The Family Lawyers Association (FLA) submitted a proposal for tariff reform to LAO in fall 2015. A starting point could be a small pilot program that would look at making motions more accessible.

A report was provided on LAOs participation in the Attorney Generals second Family Justice Table meeting, held in October 2015. The focus of this meeting was on triage in family court. LAO provided a written submission, which:

  • highlighted LAOs existing early information, advice, and triage services
  • discussed the principles of effective triage and
  • provided some ideas for effective triage, including the creation of a navigator position and making services available at more access points.

At the October meeting, ideas for two high-level triage projects, focusing on pre-application triage and enhanced first appearance, were proposed. These ideas will be reported back to the main Justice Roundtable.

Additional meetings are expected to take place later in the spring to discuss the issues of leveraging technology and simplifying and streamlining the Family Law Rules and forms.

In December 2015, LAO was invited by the Family Rules Committee to respond to a consultation on the representation of children under the Rules. LAOs submission suggested clarifying the Rules. LAO also suggested that children should not be required to have a litigation guardian in order to proceed in family court, but should presumptively require representation by a lawyer.

An update was provided on LAOs provision of domestic violence awareness training. LAO has worked with Lukes Place to provide training to over 90 per cent of LAOs staff, and the feedback has been excellent. Training now forms part of new employee orientation at LAO. Six online training modules have been created. The law school SLASS received a half-day of in-person training, and the training was recorded for the SLASS. The training is now available for interested legal clinics and will be available for per diem duty counsel starting in June 2016. Training is intended to become a panel standard for the domestic violence and family law panels in the future.

LAOs paper on development of a Domestic Violence Strategy was released in July 2015 and posted on the LAO website. Consultations were held across the province in the fall, with over 300 people participating in 23 public consultation sessions. An additional 15 consultation sessions were held with individual organizations and community groups. A full strategy paper is being prepared based on the consultations, and is anticipated to be released in the fall or winter of 2016.

The committee was advised that LAO will be responding to the Ministry of the Attorney General/ LSUC consultation paper, Expanding Legal Services Options for Ontario Families. The purpose of the consultation is to inform the Family Legal Services Review, which Justice Bonkalo is conducting, on the provision of family legal services by persons in addition to lawyers. Submissions are due by the end of April 2016. It was noted that LAO employs supervised non-lawyer legal aid workers in family law, and supervised paralegals in criminal law.

Committee members provided input and advice. The views expressed below do not necessarily reflect the views of every member:

  • Several members expressed concerns about the sustainability of the family law services being offered through the SLASS. A lot of work has been invested in this initiative, and the SLASS bring a lot to the table. The law schools are not in a position to fund the family law programs at the SLASS on an ongoing basis, and it would be very unfortunate if these family law services were discontinued. It was pointed out that the Family Legal Services Review led by Justice Bonkalo raises the question of whether there should be an increase in involvement by law students in the area of family law, because there is a recognized need, and because the work of supervised law students has a recognized value.

  • Some members noted that the domestic family tariff is no longer in alignment with the practice of family law, for the following reasons:

    • There have been numerous changes to the Rules.
    • The only unlimited thing under the tariff is trial time, but lawyers are now spending half of their time on family law matters outside of the courtroom.
    • Viva voce evidence has been largely replaced by affidavits, which require more preparation time outside of court.
    • There are more summary judgment motions, but the tariff does not allow for the time that these motions require.
    • Although there is little data available, a shift away from trials is occurring in family law, in alignment with the recommendations in the Cromwell report.

    The LAO tariff needs to be able to adapt in order to respond to these changes. For example, it would be important for the tariff to incentivize effective use of conferences. It was suggested that LAO could look at whether it is paying less for trials than it used to, and if so, this could be a source of savings that would make expanding the tariff for summary judgment motions and other matters a cost-neutral change. LAO should continue to work with its stakeholders and partners on the best and most effective way to move forward with tariff reform and incentivization.

  • Members commended LAO on its domestic violence awareness training work. LAO was urged to ensure that certificate lawyers can access the training. It should be mandatory as a panel standard or panel competency, and LAO should accelerate this process as much as possible. LAO has a leadership role to play in this area.

  • Members indicated that, generally, there is support for articling students, SLASS students, Law Practice Program (LPP) students and law clerks playing more of a role in family law. In fact, if articling students could do more, more family lawyers might be able to hire them. However, there remains a lot of concern about what paralegals might do, particularly without supervision. There would be a need for clarity and definition around their role. There would also be a need for more stringent educational requirements for paralegals.

5. Action items

  1. LAO will circulate the August, 2015 guidelines for law students appearing in family court at the Ontario Court of Justice.

6. Other business

None raised.