Responses to recent media enquiries
LAO speaks to the Ottawa Bar
Thursday, April 21, 2011
In November 2010, President and CEO Bob Ward met with family lawyers in Ottawa to address some of the questions they had about practices and processes at Legal Aid Ontario(LAO).
1. Is it true that CFSA (Child and Family Services Act) matters are being referred to the Family Law Office? Why is LAO making referrals at all?
No CFSA referrals are being made to the family law office. The family law office has been sent some clients with family law issues to determine whether or not a certificate should be issued. If a legal aid certificate is recommended, the client is referred to the toll-free number (1 800-668-8258,) and is provided with a list of lawyers.
2. What are the top five billing tips you would give to lawyers that practice in CFSA?
- Get all of the authorizations available for the matter before you bill
- Detailed dockets should be attached to each account with the specific nature of every court appearance. Please provide specifics for matters which are 30 minutes (0.5) or more
- Discretion request forms/ letters should address the specific period of the service of the account
- Do not bill motions, to be spoken to’s or adjournments as subsequent pre-trial attendances –subsequent pre-trial attendances are case conferences, settlement conferences and pre-trial management conferences
- If applicable, make certain to obtain summary judgment authorizations
3. What kind of information should we give to the CFSA clients that are referred to LAO?
CFSA clients should be advised that they can call Legal Aid Ontario’s toll-free number (1 800-668-8258) to apply. Clients should have copies of court documents (if any) and pay stubs, information about assets etc. ready as they will be asked about their financial situation over the phone.
4. Are there any LAO services that the CFSA defence bar can tap into for training?
LAO LAW contains extensive material on CFSA including Factums and other precedents. It is an excellent resource that the CFSA bar should turn to regularly. In addition, there are DVDs of conferences and a variety of Continuing Legal Education relevant to CFSA. These DVDs may be borrowed from the district office.
5. What can be done about cancelling certificates right before court appearances? We need time and hours to get off the record.
In the event that a certificate is cancelled right before trial, counsel should call the district area director. As it is unlikely that a counsel would be able to get off the record in such a situation, arrangements for continued coverage could be made.
6. What do we do with clients threatened with Temporary Care Agreements on apprehensions when they do not know their rights, they don’t have lawyers to review the documents or their consents and LAO will not fund non-litigated cases?
Clients in this situation should be referred to duty counsel for advice.
7. When attaching scanned documents to the accounts it gives an error called “internal error 500” [when billing through Legal Aid Ontario]. When this occurs, it delays the processing time for discretionary matters. What is this error? Will it continuously occur and how do we proceed if it does occur for faster processing of the funds?
We apologize for this internal server error. We are trying to resolve it. If it occurs when you are trying to attach a discretion request or dockets, please use iFax to fax us the required documentation. iFax is located through Legal Aid Online, and includes instructions on using this feature.
8. Certificates for status review applications allow for six hours only. Where Children’s Aid Society applies for Crown wardship, supervision orders or further Status Reviews (on Status Review), this is clearly insufficient. Requests for extra hours are often refused. Requesting discretion at the end does not mean that you will be paid the full amount and seeking discretion can delay payment of the account by as much as six months. How do we proceed?
Status review authorizations are granted where the client is contesting the Society’s request and where there is merit to contesting it. If the Society is going to terminate its involvement or if the client is not going to contest the request, the client can use the services of duty counsel. In the long term, LAO will be reviewing the tariff time allotments.
If counsel sets out very clearly in their discretion request letter/form why the matter should be considered as having exceptional circumstances, discretion will likely be granted, especially where counsel has not billed for excessive administrative tasks etc.
9. What is the expected wait time for a response for additional hours?
Generally speaking the wait time for authorization and amendment requests should be no more than one week. The wait times for authorizations have increased as a result of the increase in volume processed by the district office. Where we previously only dealt with requests from Ottawa, we now deal with requests from Cornwall, Brockville, Hawkesbury, Perth and Pembroke. We are in the process of hiring an additional lawyer to assist with processing these requests more expeditiously. If counsel requires a matter to be considered expeditiously, he/she should call the district area director.
10. How can we determine where we are in relation to our cap? It used to be listed on our online account, but it has been taken offline.
LAO notifies you by letter when you are at 50 per cent, 75 per cent, or 90 per cent of your hardcap. The Online hardcap report was disengaged as the information being provided to lawyers through this report was inaccurate. We are working on improving the report and making it available once again to lawyers on the portal. In the interim, if you have any questions regarding your hardcap, you can contact the Lawyer Service Centre and we will prepare a detailed hardcap report for you.
11. LAO refuses a separate certificate if the parents are living together (married or common law). However as counsel, we can often see a conflict of interest arising down the road, requiring both parties being referred to other counsel, increasing the cost to LAO. What can we do to obtain that necessary second certificate in a timely fashion?
When clients apply for legal aid on CFSA they are canvassed for issues of conflict, where there are none and parents are putting together a joint plan, only one certificate will be issued. Where there are allegations of violence or allegations in relation to one party against the other, two certificates be will issued. Where counsel brings a conflict issue to the attention of the district office, a certificate can be issued on an immediate basis if the client’s financial status can be ascertained quickly.
12. Under what circumstances will LAO pay for second opinion assessments after one assessment has been done? (Usually paid for by CAS.)
LAO will rarely pay for a second assessment after one is done. Unless there is a clear flaw in the assessment that would impact the outcome in a judicial proceeding, a second assessment will not be funded.
13. Will LAO approve and pay for mentors to assist at and to attend trials with the junior counsel that they are mentoring?
Yes, in certain circumstances LAO will pay for mentors to assist at and attend trials with the junior counsel. This would be assessed on a case by case basis.
14. If a client obtains a certificate and then becomes employed during the litigation, who has the obligation to inform LAO? If it is the solicitor, is this not a breach of the client’s solicitor/client privilege?
Both the lawyer and the client have an obligation to disclose a change in a client’s financial circumstances pursuant to the Legal Aid Services Act. As it is legislated, it does not amount to a breach of solicitor client privilege.
15. How are the number of hours allotted to a matter determined? Is it possible to increase the hours from the get-go? Is there a way by which a lawyer can learn the hours allocated to a certificate in advance of taking the case? Is the time spent explaining the complexity of a file to obtain a discretionary increase billable to LAO?
Hours are allotted depending on the issues in a case. There are some issues that are funded while others are not. In CFSA, you begin with an allotment for either a Supervision Order, Society wardship or Crown wardship. If you are going to have a care and custody hearing, additional time is granted; if there is a status review, additional time is available for that; and if there is a summary judgment motion, additional time is available for that as well. There is no way to know in advance if each of these proceedings will be conducted, as this is determined through the course of the litigation on a case by case basis.
16. Can we get email notification of funds deposited in our accounts? Can the statement of account state the hours paid and the hours billed with an explanation of any discrepancy?
Error codes are indicated on the electronic funds transfer notices sent to counsel by mail once an account is settled. These error codes explain why reductions have been made to accounts, e.g. “Dockets required,” “excessive admin,” “seek additional auth from AO”. We would like to provide more information on the solicitor portal and through email regarding when and how accounts are settled. We are working on improving our communication to lawyers in this regard.
18. Apart from using the forms on the LAO website, how can we minimize the time required to administer and account?
Detailed dockets and discretion requests that only refer to the specific period of service of the account would be helpful. The use of iFax also greatly reduces delays in progressing accounts and correspondence. Following our minimum billing requirements (no less than $500 in fees unless it is a final account) would also help; frequent interim billing of small accounts can clog up the system.
19. Now that clients are applying over the telephone, is LAO mailing out a list of lawyers to the clients if they have not already chosen a lawyer?
LAO will be making the list of lawyers available to clients within the next six months, if not sooner.
20. With s. 57.1 orders in CFSA matters, sometimes we are, in essence, negotiating entire custody/access agreements within the confines of a child protection case in order to get the CAS to terminate its involvement with the family. Is there any thought being given to providing additional authorization within the confines of a CFSA certificate for negotiating custody and access disputes?
As indicated in the response to Question 8, LAO will be reviewing the tariff allotments in the long term. LAO would be open to considering an additional time allotment for s. 57 negotiations. Written submissions on the issue would be appreciated.