Board advisory committees
Meeting of Legal Aid Ontario family law advisory committee on October 17, 2016
John McCamus (Chair), Nicholas Bala, Leighann Burns, Pam Cross, Nikki Gershbain, Jean Hyndman, Laure Prévost, Joanna Radbord, Louise Toone, Carol Hartman (LAO Board Liaison)
Sheena Scott, Sherrill Rogers
1. Welcome and introductions
Chair John McCamus opened the meeting and welcomed those present.
2. Minutes, March 21, 2016
The minutes of the March 21, 2016 meeting were approved.
3. Legal Aid Ontario business planning slide deck and discussion
The Chair presented an overview of the LAO Board Advisory Committees Fall 2016 Meetings: LAO updates and proposed priorities for 2017‑2018 slide deck, beginning with the Legal Aid Ontario (LAO) financial picture. The positive financial story is that LAO received increased funding from the government to expand eligibility for legal aid. There have been three six percent increases to financial eligibility since November 2014. The province’s $96 million investment has been used to expand not only financial eligibility, but also the kinds of cases that are eligible for a certificate. However, demand for the new services has exceeded the available funding. In addition, there has been significant increased demand for refugee services over the past year. At present, LAO faces an operating deficit of about $20 million. LAO believes that the issue of overspending on eligibility expansion will be corrected over the next 18 months as new funding for eligibility expansion comes in, because expanded legal eligibility was a one-time initiative. LAO has also obtained some additional federal money for refugee services, and is continuing to talk to the federal government and the Immigration and Refugee Board about ways to address the refugee services pressure.
Expanded eligibility has been good news for access to justice. Certificate issuance has increased by 24 percent this year, compared to the previous year. There has been a substantial increase in family law certificates, as well as in certificates for minor criminal offences. A proportional amount of the new expanded eligibility funding has been allocated to legal clinics, both to address demographic changes affecting individual clinics, and to fund collaborative projects that will provide new clinic law services.
LAO devotes additional effort to studying and improving services for vulnerable client groups through its client strategies. The first client strategy at LAO was the Aboriginal Justice Strategy, which brings forward new initiatives each year. The Mental Health Strategy, which was launched in spring 2016, has developed an extensive training program in collaboration with others including the Mental Health Commission of Canada. At the annual meeting of legal aid plans in September, LAO indicated that this training will be made available to other plans so that they can adapt it for their own use. LAO is also developing a Domestic Violence Strategy and a Prison Law Strategy.
Bail is another area that concerns LAO. Problems with the bail system are well known. There are more people in Ontario provincial institutions awaiting trial or sentencing than there are people serving sentences. LAO has developed a Bail Strategy paper, which it has shared with this committee, and is working on several initiatives related to bail. The new Attorney General has an active interest in bail issues and LAO is hoping to coordinate with the Ministry on the formal launch of the bail strategy.
In the area of criminal law, LAO is supporting the Ontario Court of Justice’s Criminal Modernization Project by making funding available for second judicial pre-trials. LAO has also introduced new supports and tools for duty counsel and has piloted the use of licensed paralegals working as part of duty counsel office teams at some criminal duty counsel offices.
The provincial government has a major initiative on open government and transparency, and LAO is supporting that initiative. The province’s open data directive asks agencies to identify their file series with a view to disclosing as much information as possible. Although much of LAO’s information is covered by solicitor-client privilege, there is also a lot of information that can be shared. LAO believes that it will be a positive thing to have more government data made available to the public.
LAO is very interested in using technology more effectively. In September, LAO hosted a “Wired Justice” conference which, through Skype, brought together leading access to justice and technology practitioners from around the world. Family law practitioners may be especially interested in “MyLawBC”, which is an interactive web program that has been introduced by the British Columbia Legal Services Society. The program is based on a similar program in Holland and can generate a separation agreement based on the answers that clients provide to a series of questions. LAO cannot afford to implement something like this now, but in the meantime, is introducing new technology-based initiatives such as an electronic worksheet that is being piloted for duty counsel working in criminal courthouses.
LAO’s environmental scan of external trends shows that the declining trend in the number of criminal cases received in courthouses is levelling off. The number of new domestic family law and child protection proceedings continues to decrease. LAO’s proposed priorities for its fiscal year 2017‑2018 business plan are expected to be a continuation of this year’s priorities. There will be a continuing focus on implementing expanded eligibility, and on developing and implementing LAO’s client strategies.
Committee members provided input and advice. The views expressed do not necessarily reflect the views of every member:
An electronic worksheet would be extremely valuable for duty counsel working in the area of family law. A lot of things can happen in each appearance in family law, and it would be very helpful to have all of this information accessible and not to have to keep going over things again and again. This also applies in the area of child protection.
Members agreed that having access to more data in the future will be beneficial. Not enough data is available on the family law system and it was felt that this should be a priority. Data on outcomes would be especially helpful. It would be good to have access to data on how cases are being resolved, for example, by trial, by focused trial, by summary judgment, or by separation agreements. Practitioners know anecdotally that summary judgment motions are being brought more frequently, especially in child protection matters, but they would like to have access to statistics. There is also interest in knowing how many legal aid applications are rejected, for reasons of financial or legal eligibility, and how many clients that do not receive certificates are being assisted through document preparation services. LAO can provide some of this data, which it currently collects, and will think about how other data can be gathered.
It was suggested that the decrease in the number of domestic family law proceedings may be related, at least to some degree, to the introduction of new LAO certificate services for separation agreements and independent legal advice to support mediation. In the area of child protection, LAO is now offering certificates for pre-litigation services and Children’s Aid Societies have also become more proactive in using voluntary agreements to keep matters out of court.
4. Family law and Domestic Violence Strategy update and discussion
LAO’s Family Law Policy Counsel provided the committee with an update on LAO’s family law initiatives. LAO has been working with the Motherisk Commission to support parents affected by flawed Motherisk hair analysis test results. Where a parent receives a “yes” from the Commission, LAO will issue a 45-hour certificate that will be funded by the Commission. Where a parent receives a “no”, LAO will fund a six-hour opinion certificate, subject to the standard eligibility requirements. Parents who believe that their child protection case may have been affected, but have not yet heard from the Commission, are being advised to follow up with the Commission.
Earlier this year, LAO was approached by the Chair of the Family Rules Committee and asked for input on potential changes to Rule 24 of the Family Law Rules, dealing with costs. LAO’s submission will be made at the end of October 2016. LAO believes that there is a need for more clarity and consistency in the scope of the rule. A solution could be a tariff with discretion.
LAO is continuing to explore options for the new family law services that were introduced three years ago with one-time, three-year funding. Some of the new initiatives reached a natural conclusion and some will be funded in other ways. LAO approached the Ministry of the Attorney General and received funding to support the remaining initiatives to the end of this fiscal year.
LAO is responding to new developments in family law, including the end of mandatory pursuit of child support for social assistance recipients. This could result in increased demand for duty counsel services, as the assistance of in-court Family Support Workers will no longer be available. It could also result in a decline in the number of fruitless support applications. LAO is pursuing options for training its call centre and court site staff to inform clients that they have the right to pursue child support, and that it can be an additional source of income for them. Another new development is that the Hague Convention on Service Abroad now applies in family law. The Ministry of the Attorney General is preparing a fact sheet and LAO is looking at developing staff training to ensure that the correct advice is provided when another jurisdiction is mentioned. It is important that interjurisdictional cases not fall through the cracks.
LAO’s pilot project on Independent Legal Advice and separation agreement certificates is nearing conclusion. LAO is evaluating the program and looking at options. LAO is also evaluating the results of the November 2014 expansion of the child protection tariff. LAO has been consulting on improving its mid-level case management program to make it more user-friendly. The program is designed for cases likely to cost over $8,000. LAO is also considering the feasibility of a summary judgement motion allowance and is discussing this with the family bar. LAO is also continuing to work with the Law Society of Upper Canada to ensure that the Law Society’s by-laws fully recognize LAO’s family law student programs.
Earlier this year, LAO made a submission to the Family Legal Services Review consultation on whether family legal services should also be delivered by people who are not lawyers, such as paralegals and law students. LAO’s submission, which is posted on its website, focused on its own experience with non-lawyers. It expressed a concern that paralegals should have a more rigorous supervisory and licensing regime.
LAO Policy Counsel leading the development of the Domestic Violence Strategy provided an update on the strategy. Consultations began two years ago, and a strategy discussion paper was released in July 2015, followed by consultation meetings across the province involving 400 members of the public. A summary of consultation results was compiled and posted in summer 2016. The formal strategy paper should be released by spring 2017. Mandatory domestic violence awareness training for all LAO staff was introduced in 2014, and the training is now being provided to clinics, per diem duty counsel and private bar lawyers on LAO’s domestic violence panel. It was noted that LAO has been consulting on whether certificates should be issued to opposing parties in domestic violence cases. This would involve applying the duty counsel financial eligibility standard, which is higher than the certificate standard and which currently only applies to family law clients who have experienced domestic violence, to both parties in the case.
Committee members provided input and advice. The views expressed do not necessarily reflect the views of every member:
The sustainability of family law services at Student Legal Aid Services Societies is a concern. Members were hopeful that these services can continue.
There are likely to be significant recommendations coming out of the Family Legal Services Review. The report of the review is likely to be released at the end of December 2016.
Some members felt that, without help from Family Support Workers, many people who are entitled to receive child support will not pursue it. Others felt that LAO could see a significant increase in demand for duty counsel assistance in drafting support applications. It was also noted that payers may be more inclined to pay child support if they know that the money will go to their family and not to the government in the form of a clawback of social assistance benefits. It was suggested that simple support applications, which often proceed by consent, could be handled by students or experienced paralegals. An online interactive program like MyLawBC could also provide assistance.
It was noted that interjurisdictional cases are common. This is especially the case with simple divorces.
The mid-level case management program is a very good program that helps cases to resolve out of court. The program needs better publicity. It also needs simpler forms.
There should be more awareness and use of summary judgment motions, particularly to ask for simple orders. These motions are overlooked. Also, many practitioners believe that the number of hours available for these motions under the LAO tariff is insufficient.
LAO’s energy and resources should be focused at the front end in family and child protection law. This represents good value and promotes better outcomes for families.
On the issue of costs, it was noted that a Ministry of the Attorney General pilot project may be underway at the Finch courthouse that involves use of a computer-generated standard order. LAO may be able to have some involvement. A costs order can be helpful to a litigant who is dealing with an opposing party who keeps bringing the matter back to court.
On the issue of representation for opposing parties, members felt that it is better for both parties to have legal representation in cases where children are involved. It is also easier for practitioners if the other party has representation.
Criminal charges can result in bail conditions affecting contact with children. It was felt that the contact issue is best dealt with in family court. It was noted that fathers are more likely to maintain an ongoing relationship with their children if their case is dealt with in the integrated domestic violence court. It also avoids the necessity of duty counsel dealing with the same issue in two different places.
Mental health support in family courts, especially for child protection matters, would be very helpful. Having access to mental health workers would save court resources and get many cases moving more quickly.
5. Action items
LAO will bring forward the committee’s request for consideration of an electronic duty counsel worksheet for family duty counsel.
LAO will provide the committee with its data on family law certificate applications and non-certificate document preparation services. The committee’s desire to see more collection and reporting of data on the family law system will be brought forward.
6. Other business