Legal Aid Advisory Committee FAMILY LAW

2 Everyone who works in family law…agrees on two things: family court is not good for families, and litigation is not good for children. The emotional carnage resulting from family litigation and its impact on the unfortunate children of warring parents cannot be overstated. And yet, family courts everywhere are jammed with couples asking judges to decide who gets custody of their children, how often the children will see the non-custodial parent, how the matrimonial property is to be divided and how much spousal and/or child support must be paid. Brownstone, Harvey Tug of War (2009 ECW Press Toronto, Ontario )

Criticisms of the Current Family Law Process Numerous reports have criticized the current Family process indicating that: –The process is unsuitable, inefficient and expensive for most cases. –The adversarial nature of litigation risks exacerbating the conflict and may harm the emotional well-being of the parties involved. –The high cost of lawyers means that many of those who do not qualify for LAO services are unrepresented. Their lack of knowledge of law and process has created extreme delays for all stakeholders in the justice system. –The family law rules attempted to ameliorate the difficulties by encouraging judicial management but under-resourced courts and the volume of cases has meant that the Rules do not function as they were meant to. 3

Addressing the Difficulties Numerous reports, surveys and research papers have called for a new family justice model with the following components: –early mandatory information; –assessment of issues/conflict and triage; –diversion of appropriate cases to mediation; –litigation in urgent, or difficult and intractable matters. Variations of this model are used in a number of jurisdictions within and outside of Canada. Many lawyers in private practice already employ the philosophy behind this model in assisting their clients. 4

LAO’s Current Family Law Services & Cost*  Certificate Program  Domestic Family Law Certificates:$31,513,265  CFSA Certificates: $13,716,513  Duty Counsel Programs  Duty Counsel OCJ/SCJ:$ 6,542,957  Expanded Duty Counsel$ 622,240  Advice Lawyer$ 2,225,049  Advice Lawyer, Family Violence$ 476,128  Family Law Offices $ 2,400,000  Volunteer Assistance$ 0 * Cash Expenditure 5

6 LAO’s Current Service Delivery Philosophy LAO provides limited up front information and case assessment. LAO’s current service delivery model presupposes litigation as the primary framework for resolving disputes. LAO’s family law service is part of the “Civil Tariff” and blocks of hours granted under the tariff are provided primarily toward initiating and prosecuting or responding to and defending a law suit. The tariff provides limited hours for negotiation and participation in ADR. The tariff does not promote early and non-adversarial resolution of matters.

A New Service Delivery Model 7 The Trebilcock Report called for LAO to be strategic, innovative and experimental in its approach to service delivery and to use resources to facilitate more timely and effective resolution of disputes. It also called for LAO to become more relevant to the middle class. What should LAO’s role be in: –The delivery of early Information including information about ADR? –The assessment of issues/conflict and triage? –Encouraging mediation and other ADR methods?

Information Numerous reports and recommendations have called for mandatory information sessions for family law clients. Should LAO deliver mandatory information? If so, should it be available to non-legally aided participants in the justice system? How should information be delivered? –Over the internet? –At computers in the FLIC? –In group sessions? –Individually? –Other? What should be included in the information sessions? –Parenting after separation and the impact of conflict on children and adults? –Information about the court system? –Information about how to find a lawyer? –Information about Alternative Dispute Resolution? –Other? 8

Assessment and Triage What should LAO’s role be in assessment and triage How can triage be effective in circumstances where –Violence is present? –One or more of the parties does not qualify for legal aid? 9

Resolution Services (Mediation & Litigation) What should LAO’s role be in delivering mediation where one of the parties is not a legally aided client? How do we ensure that urgent matters (e.g. abduction and serious domestic violence) and matters defined as high conflict will be referred to litigation? 10

Resolution Services (The Role of the Lawyer) What should the criteria be for determining what type of service a client receives? What measures can LAO take to strengthen the commitment of the private bar to doing family law work for LAO? How should LAO provide legal services in remote communities with few lawyers? 11

Child Protection Matters Child protection practice presents with unique challenges. Although mediation is appropriate in some CFSA cases, there would be difficulty employing the new service model when one of the parties is an agent of the state and matters tend to be urgent. MAG’s Advisory Committee on Attracting New Child Protection Lawyers has drafted a set of recommendations aimed at improving LAO services. The recommendations include: –Restructuring the Tariff Hours; –Measures to eliminate the bureaucracy in the relationship between LAO and the lawyers on its CFSA panel. LAO is working closely with this committee and will take the recommendations into account in improving its service delivery in this area. 12