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

Innovative family law approaches to providing services to specific communities

Unbundling of legal services

The number of family law litigants is growing, especially among lower and middle-income populations who are ineligible for legal aid40 but cannot afford full legal representation, and who need and see the value in some personalized assistance from a lawyer. Limited scope legal services or unbundling of legal services is different from providing full legal representation. This approach recognizes that for some clients, legal services may not be necessary for every issue or step in the legal process, and therefore provides clients with the option of retaining a lawyer for a discrete legal step (e.g., completing court forms, reviewing court documents and arguing a motion), or seeking assistance for dealing with only one issue in a case (e.g., property issues). Research suggests that there is significant public interest and support for improving access to family justice by increasing access to affordable, limited scope legal services.41

Unbundled legal services (e.g., lawyers providing drafting services or in-court representation for one appearance), legal coaching (e.g., lawyers assisting clients by offering advice, guidance and support) and private duty counsel services (e.g., lawyers on a rotating schedule providing in-court duty counsel services paid by litigants) are all innovations meant to facilitate access to justice.42

Alberta,43 Ontario, and British Columbia are encouraging the use of unbundled legal services and coaching44 (Buckley, 2013). A study of the Alberta Limited Legal Services Project found that 90 percent of participating clients were very satisfied with the unbundled legal services they received (Boyd, 2018). Also, 85 percent of participating clients said the amount that they were charged by a lawyer providing unbundled legal services was reasonable and 86 percent said unbundled legal services were cheaper than traditional retainers. Moreover, 90 percent of clients who received unbundled legal services said that getting help from a lawyer on an unbundled basis was better than having no legal assistance at all.

The Canadian Institute for Access to Justice (2016) surveyed lawyers across Canada about what services they provide. The survey found that 59 percent of lawyers reported that they offer limited scope retainers or legal coaching (p. 8).45 Gershbain (2017) surveyed family lawyers in Ontario and other provinces about their use and views of different types of legal services provided. She found that over 80 percent of lawyers have provided some unbundled and/or legal coaching services, either informally or formally. The participating lawyers also believed that these services were cost-effective and less stressful for them to provide than full legal representation.46

Legal aid programs in Canada make considerable use of unbundled legal services in family law cases. Duty counsel services, available to assist low-income litigants on the day of appearance at some family court sites, are an example of this type of service. There are also family legal aid clinics that provide assistance such as court document preparation for people with low income.47 Legal aid plans have call centres offering legal information and advice to low-income individuals in Manitoba, Ontario, British Columbia, and Alberta. Nova Scotia and British Columbia also offer online chats with individuals who are in need of legal information/advice (Canada’s Justice Development Goals: A2J Progress, 2017).48

The National Action Committee on Access to Justice in Civil and Family Matters Family Justice Working Group Report highlighted the need for improved access to legal services in over half of that report’s recommendations. Recommendation 16 specifically called for institutional changes to authorize and support the use of unbundled legal services for family cases: “essential legal services, including unbundling, should be available to everyone [in Canada] by 2018.”

Internet based legal services

New technologies and online portals can help people to obtain online legal information in plain language (e.g., Steps to Justice, Ontario; Mylaw in BC; Clicklaw and LegalAve in Alberta). These technologies are intended to provide easy access to useful legal information on family law issues and to assist people who are self-represented.49

There are also private internet-based service providers that provide legal information to the public. Most notably, MySupportCalculator, provides limited free information about child and spousal support calculations (e.g., taking account of the income of the parties and duration of their relationship), and for a modest fee provides much more detailed support and property calculations and information based on the user’s income and asset information.

Community-based information and services

A range of free family community legal information services in Alberta, British Columbia and Ontario provide legal information about separation and divorce.50 Other government initiatives focus on Indigenous communities and provide legal information that is available in local languages (e.g., Inuktitut in Nunavut, Mi’maq in Nova Scotia,51 and Siksika in Alberta).52 In New Brunswick,53 Ontario, and Nova Scotia,54 legal clinics assist newcomers and those who work with refugees about civil legal matters as well as some family law related matters. It is important to reach out to Indigenous and newcomer communities to provide culturally appropriate legal information.

Child representation

In Ontario,55 Northwest Territories,56 Prince Edward Island57 and Yukon,58 there are government funded legal representation programs for children in family law disputes. Ontario has the largest formally structured child legal representation program in Canada. There are also cases referred by the courts for child legal representation where there is no lawyer appointed due to fiscal limitations (Bala & Birnbaum, 2018; Bala, Birnbaum, & Bertrand, 2013; Birnbaum & Bala, 2009).

Alberta’s Family Law Act provides that for cases involving disputes between parents, “the court may at any time appoint an individual to represent the interests of a child.”59 There are no legislative provisions regarding payment for services rendered if an order is made for child representation. The services are provided by a private lawyer paid by Alberta Legal Aid, unless the parents can afford to pay for the lawyer. Although some of the child legal representation work in Alberta is done by lawyers on the Legal Representation Children and Youth (LRCY) roster, there is no requirement for this and the LRCY does not supervise or support the lawyers doing this work. Appointment in family law cases may be made in provincial court under the Family Law Act, and in the Court of Queen’s Bench by judges exercising their parens patriae jurisdiction, who do so not infrequently in Alberta60 (Bala & Birnbaum, 2018).

In Québec, Article 34 of the Civil Code requires that children be “heard” by the court in any case where their interests are affected if the children have the ability to express themselves.61 The courts in that province have statutory jurisdiction to order that a child be provided legal representation in both family and child protection cases. It is often a lawyer in private practice paid at legal aid rates by the government, though the courts may order parents with substantial resources to pay. A significant number of lawyers in Québec do child representation work, with mostly government funding and some private funding; however, there is no formal agency or organization that has responsibility to recruit, train or supervise children’s lawyers (Bala & Birnbaum, 2018).

British Columbia’s Family Law Act s. 203 provides that a lawyer may be appointed by the court to represent a child in a family law case if “the court is satisfied that the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child, and [the appointment] is necessary to protect the best interests of the child”, and one or both parents together have the ability to pay the lawyer.62

In Manitoba, New Brunswick, Saskatchewan, Nova Scotia, Newfoundland and Labrador, and Nunavut, there is no formal provision or program for the appointment of child legal representation in family law disputes (Bala & Birnbaum, 2018).


40 See article in Lawyer’s Daily, October 22, 2019 at: reporting that fewer people qualify for the legal aid threshold at about $19,000/year and on average earn, $70,000/year while a typical two-day trial costs $30,000, many more individuals will be able to access family legal services in a more cost-effective manner (accessed June 19, 2019).

42Only being offered as a pilot program in Barrie, Ontario funded by the Law Foundation of Ontario. The first author is the principle researcher for this project as well as the unbundled legal services in Ontario with Professor Bala.

43 See Boyd, J.P. (2018). (accessed on June 19, 2019).

47 See: (accessed October 4, 2019).

49 Also see other innovative services across Canada, Goal #4 at: (accessed July 10, 2019).

50 See Access to Justice Goals, Section 1 that lays out the many initiatives across Canada at: (accessed September 27, 2019).

51 See Access to Justice Goals, Section 1 that lays out the many initiatives across Canada at: (accessed September 27, 2019).

54 See Legal Aid website at: (accessed June 20, 2019).

55 Courts of Justice Act, R.S.O. 1990, c. C.43, art. 89.

56 Where the court has inherent parents patriae jurisdiction, see Kalaserk v. Nelson, 2005 NWTSC 4.66.

57 Child Protection Act, R.S.P.E.I. 1988, c. C-5.1, art. 34 (1) b).

58 Children’s Law Act, R.S.Y. 2002, supra, note 30, art. 168; and Child and Family Services Act, S.Y. 2008, c. 1, art. 76. For a discussion of the role of the child’s lawyer, see T.E.A. v. R.S.A., 2012 YKSC 65, and B.L. v. M.L., 2011 YKSC 67.

59 Family Law Act, S.A. 2003, c. F-4.5, art. 95 (3).48.

60 See Puszczak v. Puszczak, 2005 ABCA 426, which took a relatively broad view of the parens patriae power of judges to order representation for a child in a family case.

61 See Barreau du Québec, Mémoire. La représentation des enfants par avocat dix ans plus tard, 2006, Accessed at: (accessed June 21, 2019).

62 Family Law Act, S.B.C. 2011, c. 25, art. 15, art. 203 (1) a) and b).