A Profile of Legal Aid Services in Family Law Matters in Canada
This section of the report presents the data received regarding the volume and cost of family legal aid cases for the most recent year for which data are available, as well as information on trends in volumes and cost of family legal aid over the past five years. It is important to note that the amount and type of information available varied widely across jurisdictions and, thus, for many issues, data were simply not available from all provinces and territories. Where appropriate, this has been indicated clearly in all tables.
Further, given that similar types of information are presented quite differently in different jurisdictions, the comparability of data may be limited. In some cases we have attempted to calculate figures based on information that was received in order to enhance comparability. However, all comparative data should be treated with caution. Given the substantial differences in populations and income levels across the provinces and territories, it is not appropriate to directly compare the raw numbers of legal aid cases or the gross expenditures on family legal aid.
Table 2 presents the number of family legal aid applications received in the most recent year available by jurisdiction. Where available, the number of applications approved, the rate of approvals per 100,000 population, and the number of refusals are also presented. Some jurisdictions only collect data on the number of approvals for family legal aid and, thus, it is not possible to calculate a rate of approval out of the total number of applications. Nova Scotia, Saskatchewan, Alberta, British Columbia, the Yukon, and the Northwest Territories were able to provide data on each of applications, approvals and refusals.
For jurisdictions providing data on the number of family legal aid applications, differences in volumes reflect population differences, with the largest volume of applications being in British Columbia, with 25,217 in 2000/01, while Nunavut had the lowest volume, with 80. In terms of the number of applications for family legal aid that were approved, Saskatchewan had the highest proportion of approved cases (91.9 percent), followed by Nova Scotia (70.4 percent), the Yukon (62 percent), and British Columbia (61.6 percent). It is possible that these differences may reflect different levels of pre-screening of potential clients prior to submitting an actual application, as well as other factors such as the types of family law issues covered and service delivery policies.
The rate of approvals per 100,000 population varies considerably across jurisdictions. The lowest rate of approvals (i.e., 175) is found in Prince Edward Island. Québec has the highest rate of approvals at 1169 per 100,000 population. The refusal rates were highest in the Northwest Territories (40.8 percent), Alberta (39.1 percent), and British Columbia (38.4 percent).
There is very little demographic information available on the users of family legal aid services in Canada. Provinces and territories are not required to keep data on usage of legal aid by gender (Addario 1998). In a report prepared for the Status of Women Canada, however, Addario (1998, p. 1) states that "approximately two thirds of civil legal aid certificates are given to women, primarily for family law matters." According to the Law Society of Upper Canada (1999), 74 percent of legally aided clients in family law matters in Ontario are female, compared to only 18 percent of legally aided clients for criminal matters.
Gender is seen as a crucial factor in the delivery of family legal aid services because of the significant power and financial imbalances that often exist between the parties in family law disputes. As explained by Cossman and Rogerson (1997), women with few financial resources of their own may be confronted with husbands who have the means to hire private lawyers to vigorously defend their interests in family law. This problem may be compounded by the disempowerment experienced by women in abusive relationships. A women may also be disadvantaged if her family legal aid coverage is limited, and her partner has retained a private lawyer with no restrictions.
While Cossman and Rogerson (1997, p. 818) argue that "a legal aid system committed to principles of equality must ensure that women’s distinctive legal needs are given as much consideration as men’s," they recognize that low-income men may also face problems in particular areas of family law. Examples given are: defending support enforcement proceedings in cases where their economic situation has worsened; in varying previous support orders; and in maintaining relationships with their children.
Québec, Nova Scotia, and British Columbia are the only jurisdictions for which we received a breakdown of family legal aid clients by gender. While the gender breakdown for all legal aid services in Québec in 2000 was 55 percent male and 45 percent female, the gender breakdown for family legal aid services is very different. Over two thirds (69 percent) of family legal aid clients were female, and only 31 percent were male. In Nova Scotia in 1999/2000, 38 percent of applicants for all legal aid services were female, compared to 70 percent of applicants for family legal aid. Similarly, in British Columbia in 2000/01, 62 percent of all legal aid recipients were male, while 38 percent were female. However, 71 percent of legal aid recipients for family matters were female, and only 29 percent were male.
Québec and Nova Scotia also maintain statistics by age of client. In Québec in 2000, three quarters of family legal aid clients were aged 26 to 55 (76 percent). The 18-to-25 age group comprised 17 percent of the family law clients, 4 percent of clients were aged 56 and over, and 3 percent were under the age of 18. A similar pattern exists in Nova Scotia. In 1999/2000, 74 percent of family law applicants were aged 26 to 55, 20 percent were aged 18 to 25, 3 percent were aged 56 and over, and 3 percent were under the age of 18.
Provinces and territories were also asked to provide a breakdown of the volume of family legal aid approvals by type of family law matter for the most recent year available. The information provided to us by the provinces and territories is presented in Table 3. It should be noted that the categories that are used for family law matters vary considerably across jurisdictions, thus making direct comparisons very difficult. Also, in British Columbia, cases can be classified by more than one issue, thus making the total number of issue types higher than the total number of referrals.
In several jurisdictions, custody and/or access were the issues that were most likely to be dealt with in a family legal aid case. In the Yukon, 68.7 percent of all family law cases dealt with custody/access, followed by 63.1 percent of cases in the Northwest Territories, 41.9 percent of cases in Nunavut, 36.9 percent of cases in Saskatchewan, and 27.7 percent of cases in Nova Scotia. In British Columbia, 35.9 percent of the issues in family law cases dealt with custody/access. In the other jurisdictions, the issues most frequently dealt with were maintenance (New Brunswick – 27.5 percent of cases) and child welfare (Québec – 31.1 percent of cases; Alberta – 37.7 percent of cases). In Ontario, the most frequent type of family law matter dealt with was "other" (58 percent), which includes a general category called "Family Law/Children’s Law Reform." Issues that were relatively infrequently dealt with in family legal aid cases in most jurisdictions were property division, separations, and adoptions.
As shown in Table 1, most jurisdictions in Canada, with the exceptions of Newfoundland, Ontario, Alberta and Saskatchewan, use a combination of staff lawyers and private lawyers working on a tariff to deliver family legal aid services. Jurisdictions were also asked to provide, where available, a breakdown of their volume of family legal aid approvals by proportion of staff and private lawyers for the most recent year available. This information is presented in Table 4.
For the most recent year for which data were available, the following provinces/territories had most of their family legal aid cases dealt with by staff lawyers: Saskatchewan (93.5 percent); New Brunswick (88.9 percent); Nova Scotia (71.9 percent); Yukon (69.1 percent); and Québec (56.6 percent). While figures were not available for the breakdown of staff and private lawyers in Nunavut, Nunavut is in the process of working towards a staff delivery model.
Six jurisdictions using both staff and judicare delivery modes for family legal aid cases had the majority of their cases dealt with by private lawyers working on tariff: Alberta (97.8 percent); Ontario (97.6 percent); British Columbia (90.4 percent); Manitoba (69.4 percent); Prince Edward Island (68.5 percent); and the Northwest Territories (60.4 percent). In 2000/01, the majority of family legal aid cases in Alberta were dealt with by private lawyers; however, Alberta is currently implementing the Family Law Office Pilot Project, which will employ a staff delivery model in Edmonton and Calgary.
Most jurisdictions in Canada were not able to provide data regarding non-litigation family law legal aid services.
Only New Brunswick had data on the number of cases referred to mediation services in 2000/01. One third of the family law cases were referred to mediation: 32 percent voluntary, and 1.6 percent court-ordered. Some jurisdictions specified that they did not provide mediation services. Manitoba, for example, does not provide mediation services directly.
In Nova Scotia, a trial project to provide mediation services a few years ago was deemed unsuccessful due to being connected to legal aid. It was found that the party who was not being represented by legal aid felt the mediator, who was provided by the legal aid office, was biased in favour of the legal aid client. Further, the Family Division of the Supreme Court (a unified family court model) exists in two areas of the province, and in-house mediation is offered to family litigants. Since mediation in Nova Scotia is court-based in these areas, it is not seen as a legal aid service.
In British Columbia, an evaluation of the Family Justice Worker Division Project, which diverts appropriate family law cases to mediation, found that fewer than half of those clients returned to legal aid for further assistance (Focus Consultants 2001). Of those who did receive a subsequent referral, the average cost per case was $1,145 – some $379 less than the average cost for other family files. Cases are considered appropriate for referral to the program if there is no history of abuse, there are no immediate safety concerns for the applicant and/or children, and the applicant agrees to enter the program.
Several jurisdictions kept figures on referrals for summary advice, and the data vary considerably. In Québec, in 2000/01, 9 percent of the applications received for legal aid were referred for consultation only. Nova Scotia approved 15 percent of the accepted applications for summary service in 1999/2000. New Brunswick in 2000/01 referred 31 percent of its applications for information/advice/counselling only. In British Columbia in 2000/01, 20 percent of family law legal aid applicants received information/summary advice, but no referral (applicants referred to a lawyer may also receive information/summary advice services). Some applicants with family law problems not covered by the family tariff are provided legal information, summary advice, a referral, or other assistance under poverty law services (167 cases) or summary advice through intake case services (4370).
 Saskatchewan does collect demographic data from legal aid applicants, however these data are not routinely reported and thus were not available for this report.
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