Nunavut Legal Services Study

5. THE EXTENT OF UNMET NEED FOR LEGAL SERVICES

5. THE EXTENT OF UNMET NEED FOR LEGAL SERVICES

There was unanimous agreement among interviewees and workshop participants that there is unmet need for legal services in Nunavut. The question of unmet need was raised with respect to family and civil law, circuit courts, Justice of the Peace courts, bail or show cause hearings (prior to first appearance) and for prisoners on remand in correctional facilities. In all cases, there were some respondents who felt that unmet need existed in a given situation. It was clear, however, that the extent of unmet need varies from region to region and between the smaller and larger communities in any given region.

In addressing the subject of unmet need, respondents had different understandings of what "unmet need" means. Some respondents defined unmet need as "having no representation," while others felt that unmet need also encompasses concerns about the quality of the representation that is available. Throughout this section, the meaning of "unmet need" with respect to the particular area (e.g., family and civil law, Justice of the Peace courts, etc.) is specified. If respondents felt there is a lack of representation, this is noted. If respondents felt that the quality of the representation available is lacking, this also is noted.

The impact of unmet need on all parties involved in the legal system is discussed in greater detail in Section 6.0.

5.1 UNMET NEEDS IN FAMILY AND CIVIL LAW

Interviewees and workshop participants indicated that, in the case of family and other civil law services, unmet need exists because there are not enough lawyers providing these services in Nunavut. Therefore, in this context, unmet need can be defined as lack of representation.

It should also be noted, when discussing unmet need for legal aid in family and other civil law matters, that the extent of unmet need may be difficult to judge, as many individuals are only beginning to be aware of their rights in these areas. For example, both of the clients interviewed who were accessing family law support from the NLSB became aware of this service through previous contact with the criminal justice side of the practice. In fact, one was advised by her criminal defence counsel to seek the assistance of the NLSB.

5.1.1 The current level of service in family and civil law

Regulations governing service provision

The NLSB was originally intended to provide legal services in the areas of family and civil law (in some circumstances) as well as criminal law. However, in practice, legal services in family and civil law are very limited.

In determining which aspects of family and civil legal services can be funded, the NLSB has been governed by Legal Aid Bulletin 96-1, which documents the Legal Services Board of the NWT decision to "…eliminate legal aid coverage for cases of division of property, wrongful dismissal, and claims for injuries/damages."Bulletin 96-1 indicates that legal aid will not be available for "…matters involving defamation, wills and estates, incorporations, real estate transactions, realtor or representative actions, arbitration or conciliations, and proceedings relating to elections". Furthermore, legal aid coverage is not provided for:

  • Divorce, when there are no associated issues of maintenance, child custody and access or division of property
  • Division of property
  • Wrongful dismissal
  • Claims for injuries or damages, except for disbursement costs
  • Coroner's inquests

In early 2002, Bulletin 96-1 was suspended while the NLSB reviewed its policy on funding family and civil legal services. By the summer of 2002, the NLSB decided that this bulletin would continue to provide the basic structure or outline being used to determine eligibility for family law and civil law legal services in Nunavut.

Services provided

In practice, the strictures associated with Bulletin 96-1 have less impact on the coverage provided for family law and civil law matters than might be expected, as the NLSB cannot meet the demand for criminal legal aid, and criminal legal aid has taken precedence over other forms of legal services.

"It obviously comes down to resources. But when you are seeing a high percentage of people not having their rights protected, there is something wrong with the legal system. We've got to do something. Criminal law is higher profile, more immediate … Crown, RCMP, even the court is more in tune with criminal practice and procedure. … Civil matters are way down the priority list."

NLSB staff lawyers reported that no civil law matters are currently being covered by the NLSB, and that only the following family law matters are currently covered by legal services in Nunavut:

  • All child protection or child welfare proceedings.
  • Divorce, if there are issues relating to custody and support of children.
  • Child support and custody agreements (an opinion letter is sought before the agreement itself is covered and legal aid is denied if both applicants are on income support, because there is no beneficial result possible).
  • Some change of name or adoption matters, which generally involve administration and paperwork rather than court proceedings (note that legal aid applications are not normally filled out for this service and that it is perceived as anomalous that legal aid will cover these matters, but not an uncontested divorce).

In family law cases, it is the NLSB's practice to allow for three hours of summary advice related to the case upon application for legal aid, and to request a second application should the client require additional support.

Family law practitioners reported that approximately 60 percent of the family law cases currently assigned by NLSB are related to child support, followed by divorce cases with custody issues and child protection cases (representing approximately 20 percent of the case-load each). In many cases, these are applications for the variation of existing orders. Some respondents felt that the demand for variations is due to the current child support guidelines, which were transferred over to Nunavut from the NWT when the territory was created. These guidelines are difficult to implement in Nunavut, particularly with the high number of individuals who are now living with and supporting their second or third families.

Some respondents also felt that demand for family law services has increased as a result of Justice Canada's PLEI program about the right to child support, and the opening of the Maintenance Enforcement Office in Iqaluit. These respondents also pointed out that, now that there are family law practitioners on staff at the NLSB, and these lawyers are traveling to the communities, people will become more aware of the opportunity to exercise their rights in relation to family law and, therefore, demand will increase.

Practical limitations on service provision

There are a number of practical limitations affecting the delivery of family and civil law legal services in Nunavut. Some of these are logistical or administrative issues, while others relate to an overall lack of capacity within the justice system in Nunavut.

Logistical and administrative issues raised by respondents included:

  • Affidavits must now be prepared and reviewed by clinic staff (a service which was previously provided by Yellowknife lawyers or the NWT Legal Services Board office). There are also difficulties in finding a secure party to swear the affidavit once it is produced. Fortunately, RCMP officers and other members of the community who are commissioners have been willing to swear affidavits to date.
  • Getting papers served is a challenge, particularly in smaller, remote communities.
  • When new family law lawyers are hired, as recently by legal aid, they must still wait to be admitted to the bar, which may take some time.
  • The language barrier, already an issue in criminal cases, becomes more of a concern because family law and civil law issues are generally more sensitive for the client.

"Language is always an issue. Lawyers say that half their time is spent explaining concepts … procedures … Making sure [they] don't use words like custody, access, court order … What does it mean to have access to a child in an Inuit community? It is a ludicrous concept."

These logistical and administrative issues have two major implications. The first is that litigation in family law issues becomes very protracted and, therefore, costly for all parties involved. This is in addition to the fact that family law court applications are generally much more complex than criminal court applications. The second is that the NCJ has to accept the limitations of the process and show flexibility, which, to date, has been the case. The NCJ accepts faxed documents (which is not the case with courts in other jurisdictions); is flexible with respect to the time individuals need to comply with the requirements of the legal system (in recognition of the situation in remote communities); and is willing to consider "Nunavut-specific" criteria and issues when applying the guidelines relating to child support and maintenance.

Problems with the overall capacity within the Nunavut justice system for addressing family law and civil law issues also represents a practical limitation on the delivery of legal services in these areas. In particular:

  • The courts often do not have time to address civil and family law issues once they have addressed the criminal cases that are on the docket. Therefore, even when legal services are available in these areas, cases may still not be dealt with expeditiously.
  • There is a shortage of family and civil law lawyers in the private bar. There are only four lawyers in Nunavut outside of the government and the NLSB, none of whom take civil or family law legal aid cases. The shortage of family and civil law lawyers in Nunavut is so severe that when family law practitioners did arrive, there was no word in Inuktitut to describe a family law or civil law lawyer, as opposed to the word for criminal lawyer. In addition, the civil and family law lawyers in the NWT are not willing or able to come to Nunavut to do this work. The result is that often there is no one to represent the other party in the matter at hand.
  • Conflicts may occur in obtaining representation for both parties. Generally, when a family law practitioner is available, this means that whoever gets to the clinic first gets help. Conflicts may also occur if one of the parties in the family law matter is already being represented by a clinic lawyer on a criminal law matter. This is particularly of concern when a criminal case results because the family law or civil law need has not been met (see discussion in Section 5.5). In this situation, the accused will receive access to criminal legal aid but the victim cannot have access to civil legal aid or family law legal aid in order to resolve the underlying issue. In an attempt to address this matter, the Rankin Inlet clinic has established a strict separation between the family law and criminal law practices (a so-called "Chinese wall") in order to avoid conflicts and ensure representation whenever possible.

5.1.2 Unmet need in family and civil law

Unmet need for civil law services

Respondents identified a number of areas in the realm of civil law where they felt there were unmet needs, including:

  • Estate law. Very few individuals in Nunavut have a will or the resources to access legal support (which must come from outside the territory) in preparing a will. Therefore, most estates are administered by the government. This places a burden on the courts and on the Public Trustee's Office, as well as reducing the amount of inheritance available. Often, the lack of resources for estate planning is complicated by lack of knowledge of available federal benefits (see below).
  • Civil compensation for victims of crime and personal injury compensation. Many individuals are unaware that they may be able to be compensated through the legal system if they are injured or are the victims of crime. Of particular concern are cases where the injury is caused by government employees (at the Hamlet or territorial level). In these situations, given the power of the government in Nunavut, people are particularly unwilling to demand compensation.
  • Employment law, including discrimination and wrongful dismissal. This is particularly of concern because, in Nunavut, the government is by far the main employer and has a great deal of power. Some respondents felt that civil servants abuse this power on occasion.
  • Human rights. If the Government of Nunavut replaces the Fair Practices Act with a Human Rights Act it would trigger increased demand for civil legal aid, as well as for public legal education and information.
  • Landlord/tenant issues. Concerns have been expressed that representation is not provided through the NLSB for persons involved in hearings before the Rentalsman or Fair Practices Officer. It is also noted that Nunavut is a jurisdiction where housing and jobs are in short supply (as demonstrated in Section 2.1), so these hearings can have major consequences for those involved.
  • Medical malpractice. Respondents have observed that Inuit are usually accepting and non-confrontational. Recently, however, community leaders have expressed concerns in this area, asking about sources of compensation in such situations.
  • Financial issues including foreclosures and debt collection. Respondents indicated that many people in Nunavut are not aware of their rights in financial matters (for example, bankruptcy).
  • Federal Benefits access and disputes. Many people in Nunavut are unaware of the federal benefits available or how they may be accessed. In the event of disputes with the federal government over benefits, they are also unaware of the legal recourses available. In many cases, these discrepancies are only discovered once the individual is deceased and the estate is being administered by the Public Trustee's Office.
  • Poverty law. Respondents indicated that many people in Nunavut are unaware of poverty law issues, which include matters such as foreclosures, debt collection and landlord/tenant problems (see above). In a territory where the number of people living in poverty (given the very high cost of living) is so high, this is a major concern.
  • Immigration law. As more people immigrate to Nunavut from other countries, the demand for immigration law services is expected to increase.
Unmet need for family law services

Unmet family law needs identified by respondents included:

  • Child welfare - The high and rising rate of Inuit children in foster care, adoption of Inuit children by non-Inuit families, and removal of Inuit children to southern communities when they become wards of the state is being attributed by some to too few family law practitioners.15 There is also a belief among some respondents that some social workers, in some regions, have rarely been challenged and are lax in respecting the rights of parents and the requirements of the statutes in child welfare proceedings. However, it should also be noted that one respondent felt that the child protection system appears to be functioning well, with a solid structure, mandatory meetings, and independent legal advice.
  • Child support - Many women are not aware that they are eligible for child support.16
  • Property distribution after divorce - Many women are not aware of their rights when it comes to property distribution and, in particular, to housing, a key concern in Nunavut.
  • Alternative dispute resolution - Many respondents raised concerns about the use of mediation and other community-based approaches in family law cases, particularly where violence is an issue, because of the power imbalance felt by the woman involved. They felt that it is important that women have a choice to use the alternative process or the court system.17
  • Custom adoption and related issues - Custom adoption is a traditional form of adoption that is unique to Nunavut. In custom adoption, a family member adopts the child of another family member, and agrees to raise it as her or his own. In contrast with "standard" adoption procedures, the birth parent would likely continue to have contact with the child, as the child would be living with the birth parent's family.

"[A woman called in from the Kitikmeot and said] … I've been separated for nine years, [I've] yet to see maintenance, yet to see dealing with custody. The civil side is really crying [out] in Nunavut right now. If those people committed a crime, we'd be on them like a dirty shirt."

Respondents further identified that the problems of unmet need in family law are exacerbated in Nunavut because:

  • There are no family law lawyers practising outside of the NLSB, so if people are denied legal services from the NLSB, they have no alternative service providers.
  • There are a number of cross-cultural marriages in Nunavut. Sometimes there can result an imbalance of power in the relationship between the white partner, who has a good knowledge of family law and their rights, and the Inuk partner, who may have less knowledge and may be unaware of or uncomfortable exercising their rights in family law situations.
  • Nunavut has a high incidence of common-law marriages. Most people are not aware of their rights within these unions or of the family law legislation that applies to common-law couples as well as married couples.
Statistical evidence of unmet need

Unmet need for family law and civil law legal services can be examined from two different perspectives when seeking statistical evidence. The first is to examine the number and type of legal aid applications that were denied in order to identify areas of unmet need. The second is to look at the number of applications that have been received and accepted but are waiting to be assigned to a lawyer.

The analysis of denied applications proved not to be very helpful in improving our understanding of the extent of unmet need for family and civil law legal services. Very few applications for any type of legal aid are denied outright by the NLSB (see figures 2.10 and 2.11), which would seem to imply that there is little unmet need. However, the number of denied applications may not be a reasonable indicator of unmet need for family and civil law services, as most people do not believe that civil or family law legal aid is available - so they do not even submit an application. This hypothesis is supported by the generally low number of applications in the area of civil law and family law, in comparison with criminal law applications (see figure 2.9). As a result, the amount of unmet need in the areas of family and civil law is likely much higher than indicated by the number of denied applications.

The analysis of the number of applications waiting to be assigned to a lawyer, as well as the number of files currently being carried by NLSB family law practitioners, would seem to support the contention that there is a high degree of unmet need for family law and civil law services:

  • The report of the Executive Director to the NLSB meeting in February 2002 emphasizes the existing unmet need for family law services. In this report, the Executive Director indicated that 153 family law files were awaiting assignment to counsel prior to the advent of the new family law staff practitioners.
  • The present NLSB family lawyers indicated that they are already carrying a large number of files (145 in one case), some of which are extremely old (one is over 12 years old), and the majority of which are one or two years old.
  • The NCJ reports that, in 2001, 419 civil files were opened (in this case, civil includes both family and civil law cases).18

5.1.3 Resources required to improve family and civil law service delivery

Respondents identified financial and human resources and alternative resources that would be required to improve family and civil law service delivery and coverage in Nunavut.

Financial and human resources required

Respondents raised several points with respect to demand for family and civil law services, the time and cost associated with handling family and civil law cases as opposed to criminal law cases, and the human resources that would be required to meet the demand. In some cases, respondents made suggestions as to how these increases in demand and cost could be mitigated.

With respect to demand for services in the areas of family and civil law, the following points were made:

  • The existing family law practitioners with the NLSB would be unable to take on additional cases as a result of increased coverage and eligibility, given their existing workload.
  • Several respondents indicated that demand for services would likely increase with the presence of family law lawyers and Courtworkers in the communities. Their presence gives the public the impression that services are available which previously weren't.
  • Current demand is underestimated because many people do not approach legal aid clinics for help in non-criminal matters, because they simply do not realize that they have rights.
  • Current demand is also underestimated because, of those people who do approach the NLSB for assistance, many do not fill out applications once they arrive because they realize that there are no lawyers to provide the service.

"Two family lawyers in the Baffin, one in each of the other regions, should be seen as the minimum level required … I would hate to think that wouldn't be the minimal family law set up in Nunavut. We'd be taking a big step back."

With respect to the different level of resources required to address civil and family law cases, as opposed to criminal law cases, some respondents pointed out that these are very litigious areas. Therefore, the cost and time implications of each case will be much greater than those of criminal cases. The example of cases relating to the Fair Practices Act was given, where it is estimated that at least half of all cases would go to hearings. Other respondents, however, felt that the increase in resources required to improve access to civil and family law services would be balanced by a reduction in demand for criminal legal services. They felt that, there would be a decrease in incidents of assault and violence that occur because family law issues are not addressed. (See the discussion in Section 5.5 on the linkages between unmet family law and civil law need and increased demand for criminal legal services.)

Some respondents suggested that, in order to meet the increasing demand for family law legal services in Nunavut, the number of family law practitioners would have to be increased. These respondents felt that, preferably, these practitioners should be northern residents who are culturally sensitive and who report to a Board that can ensure that family law is practised in a way that is tempered by community and traditional values. At a minimum, these respondents felt that there should be two NLSB family law lawyers in the Baffin and one each in the other regions, along with one or two civil law practitioners to address non-family civil law and the many related civil issues that arise out of family law, including poverty law issues and housing.

Two suggestions were made as to how these anticipated increases in demand and resource requirements might be mitigated:

  • One respondent indicated that the anticipated increase in demand might be manageable if each legal aid clinic had one extra lawyer to cover civil and/or family law cases from the very beginning, in order to avoid building up a backlog of files.
  • Another respondent indicated that costs could be somewhat mitigated by instituting eligibility criteria and some type of affordable monthly fee, in order to encourage clients to resolve their issues rather than engage in litigation.
Alternative resources required

A number of alternative resources were also identified that would be required in order to increase coverage of civil and family law matters in Nunavut. These included:

  • Mediation and counselling programs.
  • The Positive Parenting program, which is being used in the NWT, with the support of legal services, in an attempt to reduce the demand for family law legal services that cannot be met.
  • Expanding the role of Courtworkers to address family law issues as well as criminal law issues.

Although many respondents indicated that alternatives to the traditional justice system were resources that would support better services in family law and civil law situations, a number of respondents also raised concerns with respect to those alternatives. For example:

  • Some respondents were concerned (based on experiences in other jurisdictions) that power imbalances between disputing parties might not be taken into account during mediation and counselling activities, which can have a negative effect on participants. Respondents familiar with the current pilot mediation project indicated every effort is made to build sensitivity to these issues into the model in use.
  • Other respondents felt that, as family law and civil law are more complex than criminal law, it was inappropriate for Courtworkers to be dealing with cases in these areas without a dramatic improvement in training, infrastructure, recognition, salaries, and degree of professionalism.
  • Some respondents raised concerns about importing a southern family law system into Nunavut, and wanted to make the system more culturally appropriate for the people of Nunavut.
  • Other respondents found it difficult to envision incorporating more traditional beliefs into the family law system, because these were often seen to be in conflict with the basis of the law. Custom adoption was raised as an example of a conflict between cultural practice and southern law. Although custom adoption is an accepted family law practice in Nunavut (see discussion above), the courts had yet to address the financial implications of the practice (e.g., whether the birth parent should continue to help to support the child financially, which would not be the case in a"standard" adoption). In response to this concern, the NCJ recently identified a third type of adoption, which has been dubbed "opportunistic adoption." In these cases, the birth parent is considered to be taking advantage of the practice of custom adoption to avoid financial responsibility for the child and, therefore, the court could require that the birth parent make a financial contribution to the child's well-being. The respondent who raised this example indicated that it may take five to ten years to resolve the issues raised by the NCJ's decision. Other areas where there appear to be conflicts between traditional practices and southern laws are spousal assault and divorce (these are discussed in greater detail elsewhere in this report). Some respondents believed that, as greater efforts are made to incorporate traditional practices and beliefs into Nunavut's legal system, the conflicts between these practices and the southern legal system can only increase.
  • Some respondents pointed out that the federal government's funding priorities have a strong impact on the availability of alternative justice for family law situations, since the only options that exist in Nunavut are those funded by the federal government.

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