Meeting of Legal Aid Ontario Family Law advisory committee on May 17, 2018
Published: May 17, 2018
1. Committee members
John McCamus (Chair), Renatta Austin, Nicholas Bala, Leighann Burns, Danette Edwards, Nikki Gershbain, Claire Houston, Jean Hyndman, Marian Jacko, Nneka McGregor, Liliana Mora, Charlotte Murray, Joanna Radbord, Kenn Richard, Sherrill Rogers, Paulette Senior, Raymond Sharpe, Kelly Spear, Louise Toone, Julia Vera, Tamar Witelson, Jean Nicholas Yacoub, Carol Hartman (Legal Aid Ontario Board Liaison)
Legal Aid Ontario staff attending: Marcus Pratt, Emma Barz, Christine Lunn, Lisa Bernstein, Keith Taller, Heather Morgan
2. Welcome and introductions
Chair John McCamus opened the meeting and welcomed those present.
It was noted, for the benefit of new members, that there are nine Board advisory committees which each meet twice yearly. The work of the advisory committees aligns with the business planning cycle at Legal Aid Ontario, which begins in spring each year with the environmental scan process and ends in December when the business plan for the following year is provided to the Ministry of the Attorney General. The advisory committees are asked at the spring meetings to provide advice on environmental factors that should be considered in planning for the next year. In the fall, as ideas for the new business plan are taking shape, Legal Aid Ontario again seeks feedback from the committees. A Board liaison member sits on each committee and the minutes of all advisory committee meetings are received by the Board.
The Chair noted that the minutes of the advisory committees are public, and are posted on the Legal Aid Ontario website along with the names and brief biographies of members. Committee materials and discussions are not considered confidential unless they are clearly identified as such.
3. Minutes, October 16, 2017
The minutes of the October 16, 2017, meeting were approved.
4. Legal Aid Ontario update slide deck
The Chair presented highlights of the Legal Aid Ontario Board Advisory Committees Spring 2018 Meetings: Legal Aid Ontario Updates and Environmental Scan slide deck. The deck was not presented in its entirety.
5. Family services and Domestic Violence Strategy update and discussion
The update on family and child protection services and initiatives was provided by Legal Aid Ontario’s family Policy Counsel. The update on the Domestic Violence Strategy was provided by Legal Aid Ontario’s Policy Counsel for family and prison law, on behalf of Legal Aid Ontario’s Domestic Violence Strategy lead.
Significant environmental factors in family and child protection law were noted. As of April 30, 2018, the new Child, Youth and Family Services Act has replaced the Child and Family Services Act. The final report of the Motherisk Commission, “Harmful Impacts”, was released in February 2018. Legal Aid Ontario has prepared a summary and analysis of the report, emphasizing the recommendations that relate to Legal Aid Ontario, and this summary document has been circulated to the committee. It was noted that LAO is supportive of the report’s recommendations, including the concept of a child protection centre of excellence that might provide staff lawyer services in addition to training, resources and mentoring for staff and private bar lawyers.
Justice Bonkalo’s Family Legal Services Review report also contained recommendations related to legal aid, and Legal Aid Ontario is exploring the development of a program for paralegals in family law.
Student Legal Aid Services Societies at law schools are now funded to continue their family services programs.
An update was provided by Legal Aid Ontario Policy Counsel on Legal Aid Ontario’s Domestic Violence Strategy. It was noted that the provincial and federal governments have both released domestic violence strategies in the last year with implications for the justice sector. Legal Aid Ontario’s own Domestic Violence Strategy blueprint was launched in September 2017. In November 2017, Legal Aid Ontario introduced improvements to its screening process to assist in identifying all forms of domestic abuse. Legal Aid Ontario has developed and provided training to all front line staff. In April 2018, Legal Aid Ontario implemented enhancements to the find a lawyer tool on its public website. The new functions enable selection of a second area of law and an option to cross reference with Legal Aid Ontario’s domestic violence panel. Ongoing work for the strategy includes continuing to provide training to new staff and panel members, updating and enhancing the family violence two‑hour authorization program, and continued work on improving panel management.
Legal Aid Ontario has developed a number of supports for staff to help with the transition to the new Child Youth and Family Service Act. These include website updates, a lunch and learn session and the development of resource materials that highlight key changes and new terminology in the new legislation.
Legal Aid Ontario’s family policy counsel and the Mental Health Strategy are working together to develop a full‑day training program for legal aid lawyers and staff working with family law clients who have mental health issues. The Aboriginal Justice Strategy and Legal Aid Ontario’s Human Resources department are working together to develop training on working with Indigenous families who are involved in the child protection system.
Work is ongoing on supports for the private bar, including draft family panel standards and a pilot project to expand the family case management program, that will target complex subject matters within family law and expand child protection case management to all cases. The committee will be kept up to date on these initiatives as they develop.
In response to the advisory committee’s feedback at the last meeting, Legal Aid Ontario has been reviewing its existing settlement conference processes and is considering options to pilot a process for streamlining settlement conferences and offering them earlier in the process.
Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.
It appears that what is missing from both the Motherisk Commission’s report and Legal Aid Ontario’s analysis of the report is consideration of how the private bar finds the right experts. How does a lawyer know that the expert they choose will “match” the Children’s Aid expert, and will be able to talk about the same things? It would be helpful for panel lawyers to have access to a repository of information about the experts used by Children’s Aid, to assist in cross‑examination. Crowns have access to this kind of information about defence experts, and it saves them from having to re-invent the wheel each time. Perhaps Legal Aid Ontario could take on a kind of clearinghouse role here, and develop a roster of experts.
A real need for test case litigation and Charter challenges was identified. It is difficult for the private bar to bring these kinds of cases forward, because of the number of hours available on certificates but a clinic or staff model is well suited for this kind of work and, should a child protection office or centre be established, it would be good for it to have a law reform focus. A child protection centre should complement the work of the private bar, not replace it; it should not, for example, become a casework “factory” as there are a sufficient number of private bar lawyers available to do standard child protection work. A child protection office could also develop resources for child protection work, such as public legal education and continuing professional development, and could function as a centre of excellence. An education focus would be an important focus for a new centre.
Until such time as a child protection office or centre can be established, there is a need for interim solutions. Outreach is very important. Duty counsel may be able to spread information and link with front-line organizations that serve women. For example, community health centres often receive inquiries from women involved in child protection matters. Organizations such as METRAC, which are already providing public legal education, may be able to do more to reach a larger segment of the population. Community Legal Education Ontario’s Steps to Justice online interactive program is starting to develop child protection content. It was noted that people need to know to look for online information, and the assistance of trusted intermediaries is frequently needed to help people access online information.
As Children’s Aid Societies move further in the direction of out of court resolutions, there is a corresponding loss of oversight. With more people signing agreements outside of the court process, there is an increasing need for outreach. Families need to know about their rights and they need to get legal advice before signing anything. There is a need for outreach about the availability of Legal Aid Ontario’s pre‑litigation certificates. Outreach is also needed to raise awareness that kin are able to come forward as potential caregivers is also important; many people in the Black community are not aware that this is a possibility. The new Ontario Association of Child Protection Lawyers has been thinking about ideas for outreach and increasing awareness.
The idea of a telephone hotline for providing child protection information and basic advice to parents involved with Children’s Aid is a good one and should be pursued. It could be based on the example of the Brydges 24‑hour duty counsel hotline or the Assaulted Women’s Hotline. Something like this is badly needed by the Black community in Toronto, which has been devastated by the number of apprehensions. People should be able to reach assistance at 8 a.m. or at 8 p.m. Family Law Information Centres could help to link people to the hotline by providing them with the number to call. It would be a good idea, and is perhaps an idea for a test case, for parents whose children are being apprehended to be essentially “read their rights” as in a criminal arrest situation. A script or handout informing them of the importance of contacting counsel, and how to do it, would be helpful, as the consequences here are extremely serious.
There may be limited awareness of the availability of mentoring for junior lawyers through Legal Aid Ontario’s Second Chair Program. The information is on Legal Aid Ontario’s website but people have to know to look there. Perhaps the Law Society of Ontario could help to get the word out by sending information about the program to lawyers with under five years of call. The mentoring program, as well as the availability of case management, should be mentioned at the annual intensive child protection training course.
The Family Law Program operated by Pro Bono Students Canada is seeking funding to expand its services. There may be opportunities to get students into courts during the summer months and for a partnership with the Law Practice Program regarding articling placements.
Unbundled services projects were discussed. One project focuses on developing a roster with information about who is offering unbundled services, along with development of a mandatory curriculum for lawyers as a prerequisite to being added to the roster. Another project involves a private bar duty counsel program to offer brief family law services.
Legal coaching is another area where work is going on. Legal Aid Ontario may want to consider offering training on how to do legal coaching as a means of stretching limited certificate hours. Not every client is a good candidate for legal coaching but lawyers can be trained and given tools to identify clients for whom legal coaching is appropriate and these clients can be given “homework” by their lawyer. It was pointed out that many lawyers are informally integrating legal coaching into their approach in order to stretch resources, although they may not think of it as coaching. One member felt that legal coaching is an exciting initiative that responds to the increase in self-representation and would be welcomed by many women in the community as it would help to reduce lawyers’ billable hours. Another member suggested that legal coaching may fit better with duty counsel than with the private bar, adding that it should not be used to constrain certificates or to increase responsibilities for lawyers without adding certificate hours. A suggestion was made to develop “do it yourself” workshops or webinars for people who are ineligible for legal aid; something like this could also be made available at Family Law Information Centres. Many people already look things up on YouTube or use the online Mandatory Information Program. Community Legal Education Ontario is in the development stages of an interactive program of this kind. Law students may also be able to provide assistance in this area.
Legal Aid Ontario’s domestic violence awareness training is available to interested clinics but not all clinic staff may be aware of it.
The family violence two‑hour authorizations are frequently not enough. The current form of the authorization covers only one session, and often a client wants to think about things after the first session and then come back again. Legal Aid Ontario’s Director, Policy and Strategic Research, noted that the Domestic Violence Strategy plans to expand this program in the next year and is conducting a survey of lawyers to learn more about how the two hours are being used.
There are important intersections to be aware of between criminal and family law. For example, it can be difficult to deal with a child protection matter in a way that will not impact or prejudice a client’s ongoing criminal matter. Another common intersection involves women who are accused of assault in a domestic violence matter; they become victimized in other ways. The idea of a hotline service could be very useful for people dealing with parallel criminal and family matters.
Another issue is that, when someone is incarcerated, there are challenges in getting that person to their family court appearance; the institution has to be made to understand that they must bring the person to family court. This is the cause of adjournments and delays in the family matter and is also costly for legal aid. An order for prisoner attendance can be obtained from a judge, but the paperwork is time‑consuming. Possible options for facilitating family court appearances by incarcerated persons could be making connections with the correctional institution through criminal counsel. Duty counsel and Institutional Duty Counsel may be able to work with institutional social workers to help get the person to family court.
Expectations of counsel under the new child protection legislation were dealt with in a recent decision by Justice Sherr that was highlighted in LAO LAW’s Bottom Line for family law. This decision should be publicized.
In developing training for staff working with Indigenous families involved in the child protection system, Legal Aid Ontario should ensure that the voice and views of the child are not lost. Legal Aid Ontario could work with the Office of the Children’s Lawyer, which has established good contacts with First Nations working on establishing child well‑being models.
The family case management pilot seems heavily focused on high cost issues. Cost can spin out of control where there is a custody or access dispute in a high conflict case, for example where both are claiming sole custody and one parent is claiming that the other is unfit.
One thing that Legal Aid Ontario may want to consider when looking at settlement conferences is potentially having facilitators as well as lawyers screening candidates for domestic violence. It was also noted that having settlement conferences earlier in the process will require more resources.
6. Action items
Legal Aid Ontario will look into the potential for developing a roster of child protection experts to assist the private bar in choosing the right expert for their case.
Legal Aid Ontario will obtain updated numbers on issuance of pre-litigation child protection certificates to share with the committee at the next meeting.
Legal Aid Ontario will continue to explore the idea of a hotline for providing advice for child protection matters.
Legal Aid Ontario will look at how it may be able to assist with getting people who are incarcerated brought to court for their family law appearance.
The Aboriginal Justice Strategy will connect with the Office of the Children’s lawyer regarding the development of training for staff working with Indigenous families involved in the child protection system.
7. Other business