The Impact of the Lack of Legal Aid in Family Law Cases

Appendix

Appendix 1: Key informant & interview guides

Legal Services Solicitor, Newfoundland and Labrador

Legal Director, Rankin Inlet, Nunavut

Executive Director, Yukon Legal Services, Whitehorse, Yukon

Executive Director Manitoba Legal Aid, Winnipeg, Manitoba

Deputy Executive Director, Legal Aid Manitoba

Executive Director, Legal Aid, Yellowknife, Northwest Territories

Directrice déléguée au Comité de révision

Interview guide for key informant stakeholders

  1. What challenges/barriers, if any, are there in providing legal aid to family law disputes?
  2. What challenges/barriers, if any, exist between providing certificate and/or duty counsel and/or clinic funding and services? (Prompt: funding, types of cases, language barriers, demand and cost; culture and communication)
  3. What challenges/barriers, if any, exist to providing access to family justice services in rural and remote northern communities? (Prompt: language, distance and transportation, lack of technology; culture)
  4. Do you have any documents that you can share for inclusion in this project on challenges /successes in access to justice in family law cases? (Prompt: government reports, public documents)
  5. Are you aware of any innovative practices/programs in your jurisdiction that provide family legal aid services? (Ask for descriptions). Please elaborate on the impact of these innovative practices/programs on the litigants and service providers?
  6. Can you describe whether cases that involve family violence, Indigenous peoples, or other vulnerable and marginalized groups receive priority over others for family legal aid funding? If so, what criteria do you use?

Appendix 2: Coverage and eligibility criteria for family legal aid

All legal aid programs have some form of financial eligibility guidelines or income cut-off (Bertrand et al., 2002; Wright, 2017). The financial eligibility and coverage guidelines for legal aid across Canada has been reviewed by Bertrand et al. (2002), Currie (1999, 2013), Tsoukalas & Roberts (2002), Trebilcock (2008), and Wright (2017). The Department of Justice Canada has also documented the financial eligibility guidelines and coverage in the provinces and territories.78

The financial eligibility guidelines take into account the household income, family size and assets. While they vary across the country, in most jurisdictions the legal aid eligibility criteria are effectively at or below poverty levels, though there is no consistency in how to define poverty.79

British Columbia80

The Legal Services Society (LSS) administers legal aid in British Columbia. In the Annual Service Plan Report (2018),81 it was reported that costs exceeded the budget in 2016 -2017. As a result, there was a reduction in family services through the elimination of discretionary spending. The LSS no longer approved representation in family cases that did not meet standard coverage criteria or cases even marginally over the financial eligibility requirements. Further, the LSS stopped allowing lawyers to work additional hours on complex family cases that exceed the allotted time limits. However, additional funding was reintroduced by the provincial government in 2018 -2019 to meet the legal aid needs of more individuals. It remains unclear how much will be used for family law cases and whether there will be coverage for child and spousal support. Further, if a woman requires a restraining order for family violence, family legal aid will provide a staff lawyer, without testing for financial eligibility.

Alberta

The Legal Society of Alberta (LSA) administers the delivery of legal aid services. For those who are financially eligible, legal aid covers most family matters, including parenting orders, property and child support, but not divorce or spousal support (Bertrand et al., 2002; Wright, 2013).

In 2017-2018, there were a total of 51,729 legal aid certificates issued for all types of cases, of which 6,536 (13 percent) were made for family law matters. Similar to British Columbia, legal aid is available for victims and survivors seeking emergency protection orders for family violence cases, regardless of income.82

Yukon

The Yukon Legal Services Society administers the delivery of legal aid services in the territory. Family law matters are heard in the Supreme Court chambers, while child protection cases are dealt with in the territorial court.

In 2018-2019, the Yukon LSS received additional territorial funding to meet the increasing number of cases being handled by too few lawyers. The funding was also used to update necessary technology and strengthen partnerships with Yukon First Nations and other Yukon communities.83 Twenty-five percent of the overall legal aid budget is used for family law related matters (e.g., child protection and family matters).84

Coverage is provided for those financially eligible for most family law matters with the exception of divorce and property. Some low-income individuals are assisted even though they are not financially eligible for matters set for trial, to allow for the review of pleadings for court.

Due to a shortage of lawyers in the North, it is challenging for legal aid to adequately staff positions. Presently, legal aid has nine lawyers. If one person is ill or on vacation, the level of efficiency for intake services is reduced and assignment of files becomes difficult if there are conflicts (e.g., the lawyer has previous involvement with the other side of the case) on a file. The geography is also hard to serve, as there are 13 circuit courts serving 14 Yukon First Nations and other communities, making face-to-face meetings with clients very challenging. As a result, many intake interviews and document preparation are conducted by telephone. For clients who can attend in person, there are support workers available for clients to meet with their lawyers.85 In 2017, priority was given to family law applications involving violence or fear of violence.

Northwest Territories

The Legal Services Board of the NWT administers the delivery of legal aid services. Legal aid coverage includes custody, access, child/spousal support (e.g., if child custody is part of relief), restraining orders, possession of matrimonial home, division of property, child welfare issues, and divorce, but only if custody or access is also sought. With respect to financial eligibility guidelines, individuals may be required to contribute or fully repay legal fees if they are not in receipt of social assistance.

Individuals must demonstrate financial need through disclosure of their assets, liabilities, income and expenses of their spouses and dependents. Legal aid funding is approved by application, and priority is given to cases with earlier court dates as well as family violence issues.86 While the actual number of approved family legal aid applications has decreased since 2012-2013, the reasons vary. An important reason is the lack of available lawyers in the NWT; legal aid has difficulty in retaining staff lawyers (Annual Report, 2017-2018, p. 27). 87

Saskatchewan

The Saskatchewan Legal Aid Commission administers the delivery of legal aid services under the Legal Aid Act and Legal Aid Regulations. The financial eligibility test uses both income and assets of the individuals (Provincial Auditor of Saskatchewan, 2016).88 If the individual is on social assistance or is a band member, legal aid is usually granted, depending on their available assets (Auditor’s Report, 2016).89 Coverage includes all family matters, except for divorce, which is covered only when there is a custody or access request.90 When an emergency family violence protection order is sought, the application is handled by Victim Services of Saskatchewan, so no legal aid is required.

Manitoba

Legal Aid Manitoba (LAM) administers the delivery of legal aid services. Manitoba’s financial eligibility is determined by considering the annual family income and the number of family members. An individual will qualify for full representation services (in the areas of criminal defence, child protection, family, immigration and refugee, poverty and public interest law) free of charge, if their annual gross family income falls within the “free” legal aid eligibility threshold. Similar to other provinces and territories, individuals on social assistance are presumed to be financially eligible for legal aid. However, if the person owns property, the property may become subject to a lien, and an asset value test may apply to determine eligibility.

If the family income exceeds the guidelines for free legal aid but LAM determines that the individual cannot afford to pay all the cost of a lawyer, the individual may qualify for legal services through the Agreement to Pay (ATP) program. However, they will be expected to pay back all of their fees and disbursements (at LAM rates) plus a 25% program fee.

Manitoba’s ATP cases were initially made possible by a one-time grant from the Department of Justice Canada and continued funding from the province and the Manitoba Law Foundation. It continued to operate until October 2014. As of 2015, free legal aid for a single person is available for those with less than $23,000 in annual income, and the ATP program applies for individuals whose income is between $23,000 and $35,000.91

There is no prioritizing for Indigenous peoples or family violence matters in Manitoba.92

On June 3 2019, Manitoba enacted Bill-9, The Family Law Modernization Act.93 The Act allows for the establishment of a pilot project under section 1 of the Act “to create a process outside the traditional court system that provides for the fair, economical, expeditious and informal resolution of family disputes.”94 It remains unclear whether this Act will affect legal aid financial eligibility and coverage. However, it may affect the delivery of family legal services for those involved in separation or divorce. For example, unmarried parents who cannot resolve their parenting dispute will not be allowed to proceed to court but will go to an administrative tribunal.

Ontario

Legal Aid Ontario administers the delivery of legal aid services. Legal aid covers all family law matters.95 After many years without increases in the income eligibility threshold, there were annual six percent increases in financial eligibility criteria from 2014-2018 inclusive. However, in April 2019 the Ontario government announced a 30 percent reduction to the overall budget for legal aid that has affected all services,96 including family law certificates, family law duty and advice counsel, and community clinics, which serve some minority communities (e.g., South Asian Legal Services, Muslim Legal Services, and Korean Legal Services).97

Family violence continues to have priority with respect to coverage,98 with Legal Aid Ontario continuing with the Domestic Violence Strategy announced in February 2015.99 However, with the recent cuts in funding, some community-based legal aid clinics may be at risk of eliminating services to victims of domestic violence.100

In addition, while Legal Aid Ontario has prioritized services for Indigenous individuals in the criminal context,101 there remains little to no priority given to Indigenous clients in the family law context, where there are many intersecting issues between family, child welfare and the criminal contexts.102

Nunavut

The Legal Services Board (LSB) administers legal aid services in all three regions of Nunavut (Iqaluit, Rankin Inlet and Cambridge Bay). Coverage includes custody, child support cases, maintenance applications, DNA testing if required (e.g., paternity testing), division of property and issues related to possession of matrimonial home, if issues of child custody or related to support are made.103

Financial eligibility criteria are set out in the Legal Services Act. According to the Nunavut Legal Services Annual Report, 2016-2017, individuals qualify according to annual gross income. However, legal aid is rarely denied even to those with higher incomes, given the significant challenges in finding a private lawyer in Nunavut. Legal aid in Nunavut has the highest per capita legal aid spending in Canada, with both the federal and territorial governments providing funding (i.e., 10 times more per capita than Ontario).104

The spending on legal aid in Nunavut reflects the unique challenges of serving 25 communities that are hard to access given geography and weather-related factors (e.g., they can be accessed only by air for most of the year). The financial costs of providing legal aid lawyers in a northern area that covers 20 percent of the land mass of Canada cannot be overstated. Government family justice services and supports (e.g., information services, mediation) are lacking, and there are few lawyers in private practice. Providing services in languages other than English is a significant challenge for lawyers in many areas of criminal and civil law, particularly in family legal aid (Clark, 2011).

Québec

The Commission des services juridiques administers legal aid. The Commission provides a statement on quality assurance that is publicly available on their website.105

There is a two-part eligibility test for legal aid: financial criteria and services covered. Coverage includes all family matters related to custody and access, child support, spousal support (in Québec common law partners cannot obtain spousal support), divorce, and restraining orders in family violence.106

Recipients of social assistance are eligible for legal aid without any obligation of contribution. Others qualify under a complex formula that examines income, value of property, and liquid assets.107 Legal aid eligibility increased by 4.17 percent as of May 31, 2019, equal to the percentage increase of the province’s minimum wage.108 As noted above, the income threshold of family legal aid in Québec is the highest among Canadian provinces.

Nova Scotia

The Nova Scotia Legal Aid (NSLA) Commission administers and operates legal aid. Coverage is provided for most family law matters such as parenting, child and spousal support for individuals as well as with children, divorce matters where the individual does not have significant property, and family violence issues (see Annual Report, 2017-2018).109

Financial eligibility is based on a needs test, based primarily on income, but consideration may also include expenses, debt load, and assets. Individuals on social income assistance qualify, or if paying for a lawyer would put the individual at the income level of social assistance.110

New Brunswick

The Legal Aid Commission administers legal aid in the province. Legal aid covers family related matters, except for divorce, variation of child support, spousal support pursuant to the Divorce Act, division of matrimonial property, or property claims for the unmarried.111 (New Brunswick Annual Report 2017-2018)

Financial eligibility as of April 15, 2017 is based on an income grid that defines income brackets per household size rather than disposable income. Individuals who receive legal aid may be required to contribute according to the income grid.112

Prince Edward Island

The Prince Edward Island Legal Aid Program is administered under the Department of Environment, Labour, and Justice. Prince Edward Island does not have specific legal aid legislation.113 The scope of services and coverage by the program as well as financial eligibility guidelines are determined by government policy.

Coverage is meant to be flexible with the highest priority given to cases involving family violence. The next priority is matters concerning children (e.g., including child welfare matters) where family violence is not the central issue. Financial eligibility is determined by considering income, assets and liabilities, as well as requiring documentation of a partner’s income, assets and debts.114

Newfoundland and Labrador

The Newfoundland and Labrador Legal Aid Commission has administered legal aid since it was established in 1976 by the Legal Aid Act. Coverage in family matters is dependent on the nature of the matters in dispute (e.g., parenting, child support). However, for some matters, coverage extends further than in other jurisdictions across Canada.115 For certain categories of family law cases, legal aid will provide coverage without financial assessment, including inter-jurisdictional child support orders, child welfare cases, and lawyers for children in child welfare cases.

Newfoundland and Labrador does not have clear financial assessment guidelines. Income is considered, as well as an asset minus debt analysis, but it is complicated and currently being examined to make it more in line with other jurisdictions and to make it easier for those applying. There are concerns that women, in particular, may not have access to financial information at family breakdown and as a result may be regarded as ineligible and left in vulnerable situations.116

There is an Equity Program that helps individuals with less than $60,000 worth of assets. They can then be referred by legal aid to a private lawyer and legal aid will provide $5,000 to assist that lawyer to take them on as clients, with the expectation that legal aid will be reimbursed if there is a favourable court outcome. However, there are few private family lawyers willing to do this type of work, and none in Labrador who do family law work. It is acknowledged that there is a large gap in access to justice across the province, particularly if the individual lives outside of St. John’s.117

Footnotes

78 See: https://www.justice.gc.ca/eng/fund-fina/gov-gouv/aid-aide.html (accessed June 14, 2019). For low income level cut-offs across Canada, also see: https://www150.statcan.gc.ca/n1/pub/75f0002m/2012002/lico-sfr-eng.htm (accessed June 14, 2019).

80 See Brewin and Stephens (2004), Brewin and Govender (2010), Light (2005), and Sarophim (2010) for a review of the history (e.g., 1980’s to 1990’s) of spending cuts to legal aid in British Columbia and the impact on women, in particular. Also see Housefather (2017) Report from Standing Committee on Justice and Human Rights at: http://publications.gc.ca/collections/collection_2017/parl/xc66-1/XC66-1-1-421-16-eng.pdf (accessed October 5, 2019).

81 See Annual Report for BC at: https://lss.bc.ca/about/annualReports (accessed June 13, 2019).

82 Legal Aid Alberta: Alberta Annual Report 2017-2018 at: http://www.legalaid.ab.ca/about/Documents/Annual%20Report/LAA%20Annual%20Report%202018.pdf (accessed, June 14, 2019).

83 In 2018-2019, legal aid received 2.58 million in funding from the federal and territorial government (Hong, J., 2018; Yukon News), see: https://www.yukon-news.com/news/yukon-legal-aid-receives-additional-241k-in-funding.

84 Telephone interview with, David Christie, Executive Director, Yukon Legal Services on June 6, 2019.

85 Telephone interview with key stakeholder, David Christie, Executive Director, Yukon Legal Services on June 6, 2019.

87 Key stakeholder telephone interview with Karen Wilford, Executive Director of Legal Aid, NWT on May 27, 2019. Effective April 1, 2019, there is a new financial eligibility criteria and application.

88 See Auditor’s Report: https://auditor.sk.ca/search?query=legal+aid (accessed June 17, 2019).

89 See Auditor’s Report (2016) Vol. 1 at: https://auditor.sk.ca/publications/public-reports/item?id=142 .

90 See Facts, can be accessed at: https://www.legalaid.sk.ca/community_resources/factsheets/legal_aid_general.php (Accessed on June 14, 2019).

91 Email from Sam Raposo, Deputy Executive Director of Legal Aid Manitoba, dated June 6, 2019.

92 Stakeholder telephone interview with Gil Clifford, Executive Director and Sam Raposo, Deputy Executive Director of Legal Aid Manitoba, June 6, 2019.

93 See Glowacki, L. (March 12, 2019) CBC News at https://www.cbc.ca/news/canada/manitoba/family-law-modernization-act-1.5053359 (accessed June 17, 2019).

94 See: (accessed June 14, 2019). Also see, Notice to the Profession, dated February 19, 2019: https://www.legalaid.mb.ca/wp-content/WordPress/PDF/np_37_2019.pdf (accessed June 14, 2019).

95 See Auditor’s Report, Legal Aid Ontario (2018) at: http://www.auditor.on.ca/en/content/annualreports/arreports/en18/v1_305en18.pdf (accessed June 14, 2019).

96 See Stengel, J. (2017) at: https://nowtoronto.com/news/legal-aid-ontario-26-million-deficit-critical-role-family-law/ (accessed June 14, 2019); Beattie, S. (2019) discusses Ontario cuts at: https://www.msn.com/en-ca/news/politics/vast-majority-of-ontarians-oppose-fords-cuts-to-legal-aid-poll/ar-AABL1tA?ocid=spartandhp (accessed June 6, 2019). Also see July, 2019 announcements on reduced services for legal aid at: http://legalaid.on.ca/en/news/newsarchive/2019-07-04_changes-to-policies-and-coverage.asp (accessed July 6, 2019).

102 See Final Report on Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls at: https://www.mmiwg-ffada.ca/final-report/ (accessed June 28, 2019).

103 Key stakeholder telephone interview with Benson Cowan, Director of Legal Aid on May 31, 2019.

104 Ibid.

108 See announcement at: https://www.csj.qc.ca/commission-des-services-juridiques/lang/en (accessed on June 24, 2019)

110 See: https://www.nslegalaid.ca/who-qualifies/ (accessed June 15, 2019).

112 See eligibility guidelines at: http://www.legalaid.nb.ca/en/family_law_services (accessed June 15, 2019).

116 Key stakeholder telephone interview with Barbara Barker, Legal Services Solicitor on June 5, 2019.

117 Ibid.