Meeting of Legal Aid Ontario Family Law advisory committee on October 29, 2018

Published: October 29, 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, Paula Beard, Heather Morgan

2. Welcome and introductions

Chair John McCamus opened the meeting and welcomed those present.

3. Minutes, May 17, 2018

The minutes of the May 17, 2018, meeting were approved.

4. Legal Aid Ontario update slide deck

The Chair presented highlights of the Legal Aid Ontario Board Advisory Committees Fall 2018 Meetings: Legal Aid Ontario Updates and Business Planning slide deck.

Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.

  • Using technology to advance client service is a good direction for Legal Aid Ontario to be moving in. This client piece is very important. Through technology, clients should be able to be educated about their certificates, and keep on top of the documentation they need to have or complete.
  • Regarding the development of Indigenous child protection training for legal aid staff, there needs to be awareness that there are multiple perspectives and no one standard for training in this area. As a result, the approach to engagement needs to be a broad one. In addition to the Office of the Children’s Lawyer, Legal Aid Ontario should engage with the Indigenous child welfare system. In developing training there also needs to be awareness of the tremendous overlap between social work and the legal function in this area.

5. Legal Aid policy at Default Incarceration Proceedings

The committee discussed legal aid policy regarding default incarceration proceedings in light of the recent decision in FRO v. Wilson, in which the Family Responsibility Office (FRO) was seeking a warrant of committal for a self-representing payor who had had duty counsel assistance on previous occasions but now, on his eleventh appearance and facing incarceration, did not have duty counsel representation. In this case, the client ultimately received a certificate referral.

Legal Aid Ontario’s family Policy Counsel advised that there is no legal aid policy that duty counsel do not provide assistance at these proceedings although, typically, clients are referred to another service such as through a Family Law Service Centre or certificate. This particularly tends to be the case where duty counsel have insufficient time, are not able to review all of the material, and there have been a lot of previous appearances. Straightforward cases would not qualify for certificate coverage but complex ones, including those where client complexity factors exist, would be eligible for a certificate referral.

These proceedings are relatively infrequent. It may be helpful for Legal aid Ontario to provide training, such as a lunch and learn session, to provide duty counsel with more familiarity and confidence regarding these hearings.

Committee members provided the following input and advice, including on existing service gaps and potential priorities. The views expressed do not necessarily reflect the views of every member.

  • Several members noted the difficulties that surround default proceedings where there are unrepresented payors. At FRO proceedings, some payors have private bar representation and others have duty counsel assistance, but generally speaking over two‑thirds are entirely self‑represented. FRO counsel are required to move cases forward and find themselves in the position of explaining procedure and even the law to payors, which is awkward. Judges are cautious and they adjourn, because payors are trying to manage on their own and they face up to six months in jail. Accordingly, some cases can go on for up to 25 appearances.
  • It was noted that these are adversarial proceedings and they involve a very vulnerable population, who are disproportionately minority or First Nations men. They face the possibility of immediate imprisonment, essentially going into debtors’ prison. Often they have mental health, substance abuse or other issues that make it difficult for them to work and also for them to litigate their own cases. They simply cannot navigate the system. Some of these men might have a Charter right to counsel that could be raised. It may be appropriate for legal aid to issue a certificate in complex cases.
  • It was felt that duty counsel would face difficulty doing these hearings. If duty counsel are representing these clients training should be available to them, at least to help them get an adjournment. It was noted that FRO counsel are available for webcasts and in‑person training in the Greater Toronto Area, and had presented at a lunch and learn for duty counsel on default hearings and enforcement in 2017.
  • Members advised that many of these individuals are on social assistance or would otherwise qualify financially for a certificate. Typically, their arrears accumulated as long as 20 years ago, at a time when they were working.
  • Members also indicated that in their experience certificates for default proceedings are seldom granted. One member noted having only seen one certificate that was issued, and the client experienced difficulty getting a lawyer to acknowledge it for the seven hours it authorized. The client had already made 15 appearances by that point. By the time things get to the stage where a certificate may be issued, the matter has gone on for such a long time that a great deal of time and money has been wasted.
  • Having data on how many certificates are currently issued by Legal Aid Ontario would be helpful. It was noted by a member that many of these default proceedings also involve a motion to change and that there are huge overlapping issues between these two proceedings.
  • It was suggested that Legal Aid Ontario consider a sliding scale for certificate eligibility, with limited‑scope certificates available to enable a lawyer to go to court with the client, and an option for a full certificate to be issued on the basis of complexity. A limited scope certificate could be helpful because, even if duty counsel assist the client at each appearance the client is seeing a different duty counsel each time and there is so much paperwork to go through each time while everyone just waits around. A tremendous waste of money could be avoided if the payor just had a lawyer there to help him deal with things. Having counsel there would help cases resolve a great deal sooner and would free up duty counsel to assist with other cases.
  • It was also suggested that the start of a new proceeding on a warrant of committal could be treated as the trigger or threshold for issuing a certificate. Although imprisonment can occur at any stage of the process, it is when a payor is facing a warrant of committal proceeding that the likelihood of jail becomes extremely serious. The difficulty is that not all courts follow a consistent practice and while some courts require a motion to initiate a warrant of committal proceeding others just launch into the realm of incarceration without it. That is a Rules Committee issue and having clarification of that could be beneficial, as would encouragement of more consistent practice.

6. 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 family Policy Counsel, on behalf of Legal Aid Ontario’s Domestic Violence Strategy lead.

At the last meeting, the new Child, Youth and Family Services Act (CYFSA) had recently come into force, in April. Since then Legal Aid Ontario has been working to assess the impact of the new legislation. So far no significant impact has been noticed and it will probably take a year for any definite impact to become apparent although there has been a slight increase in requests for non‑litigation child protection certificates. Check-ins with Legal Aid Ontario’s Family Issues Committee will continue on this issue.

Bill C-78, the bill to amend the Divorce Act, had second reading in October and has been referred to the Standing Committee. Legal Aid Ontario has prepared an impact analysis, which was attached to the meeting materials received by the committee. A few of the amendments may be challenging. For example, there is new language on parenting orders. Also there may be concerns that information included in tax forms could be accessed by abusers. The government is accepting submissions on Bill C‑78, and Legal Aid Ontario is considering making a written submission as it recently did on the subject of Bill C‑75, in criminal law. Advice from the committee on issues that should be flagged would be welcome.

An update was provided on the Domestic Violence Strategy. A policy clarification is being made to confirm the availability of a stand‑alone authorization from Legal Aid Ontario for obtaining a restraining order. This is going live at the end of October. Work continues to improve the Family Violence 2‑hour Authorization. Feedback from domestic violence panel lawyers was obtained over the summer, through surveys, and the survey feedback is being looked at.

Family law mental health training has been developed, in collaboration with the Mental Health Strategy, and will be held on November 12. The training will be in‑person and live‑streamed. It will also be recorded and made available to panel lawyers and to non-lawyer staff who work with family law clients. There will be several presenters, including from the Office of the Children’s Lawyer and the Office of the Public Guardian and Trustee. There are many more areas and issues, and we’ll be collecting information on other topics people would like to hear about, for example through lunch and learns.

Legal Aid Ontario’s Aboriginal Justice Strategy is working with Human Resources to develop training for staff on working with Indigenous families who are involved in the child protection system. A survey for community and Indigenous stakeholders has been developed, to obtain input on the issues they think staff should be knowledgeable about.

Legal Aid Ontario is going to be moving forward with implementing family case management. There are details that need to be worked out and more information will be available. Work is ongoing to address lawyer feedback on the legal aid billing portal, and come up with solutions. Work is also continuing on exploring options for streamlining and enhancing LAO settlement conferences. Information is being complied on how these are currently offered in different districts. There may be an update to share by way of email before the next committee meeting.

Policy has been working with LAO LAW to create an experts database, on child protection matters in particular, for staff and panel lawyers, and will be reaching out to internal and external stakeholders. It may be possible to create a page on the LAO LAW website to consolidate information that would be helpful to panel lawyers.

Legal Aid Ontario continues to provide support to the summary legal counsel program pilot in Barrie.

LAO has been looking at its general family panel standards. Last year, there was a review of the existing standards, and 16 internal consultations were held. The feedback received at these consultations has been reviewed and consolidated. External consultations are the next step, and should begin in about a month’s time. The goals are to clarify the factors considered, and enhance the minimum standards.

It was noted that members had received a separate confidential attachment, not intended for distribution beyond the advisory committee, containing a draft list of substantive and practice requirements. The intention is to incorporate a finalized version of this list into the panel standards. The confidential attachment circulated to the committee also included a draft best practice and resource guide. Members were invited to discuss these materials, and to provide advice on how the new standards might be rolled out. They were also asked to indicate if scheduling further discussion time would be helpful.

Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.

  • Regarding Bill C‑78, Legal Aid Ontario may wish to make submissions on how the new language on parenting orders will be understood and enforced. Some other countries and other Canadian jurisdictions have already moved to this kind of language. There are provisions dealing with enforcement of support obligations that could also be looked at. It was suggested that Legal Aid Ontario focus on the bill’s potential implications in terms of the administration of justice.
  • Clients and shelter workers who work with clients say that it is problematic having access to only one Family Violence 2‑hour Authorization. They say that having more than one chance to talk to a lawyer is even more important than the number of hours authorized.
  • There should be engagement with the Indigenous child welfare system to support development of staff training for working with Indigenous families. Too often this system, which is trying to do something dramatically different, is treated as being the same as the rest of the child welfare system.
  • If Legal Aid Ontario develops an experts database, care should be taken to ensure that the list is kept current and is made up of people who are willing to work within the legal aid tariff.
  • There was discussion of the confidential draft documents related to family panel standards:
    • Members indicated that mentoring, including through the Second Chair program, needs to go hand in hand with panel standards. The proposed requirement of substantial involvement in a minimum of ten family law files creates a catch‑22 situation for lawyers who want to start working in this area, given how difficult it is to obtain articling experience. This is even more of a problem on the child protection side, because these are all legal aid files. Pairing up with lawyers who already work in the area is how many lawyers currently working in this area got their start.
    • Lawyers who work solely in the area of child protection would find it difficult to meet some of the proposed family panel requirements. Child welfare and domestic family law overlap but are also different areas. A member suggested that there be two separate panels, a domestic family panel and a child protection panel, rather than a single family panel that all lawyers must join even if they only work in child protection.
    • There is a need for clarification about mentorship, such as who can act as a mentor. The proposed requirement for names and phone numbers of experienced family lawyers who would be willing to be references was felt to be puzzling.
    • It was noted that new lawyers are stressed by the empanelment process, and by dealing with legal aid. Even experienced lawyers are stressed when they join the panel. So far as the empanelment process is concerned, the mentorship requirement seems to relate chiefly to billing issues, something that could perhaps be more appropriately handled through training. From the practitioner’s perspective, Legal Aid Ontario’s Second Chair program is more valuable.
    • Advice was also provided on resources proposed for the best practice and resource guide. Many of the cases listed are older cases. Members recommended any of the materials available from LAO LAW, including LAO LAW’s memoranda and the “Bottom Line in Family Law” which is published weekly. Justice Sherr’s Bench book is also a good go-to guide. The Indigenous Association of Native Child and Family agencies across Ontario is a helpful resource and a good connection to people working on the ground.

7. Action items

  1. Legal Aid Ontario will follow up on assistance provided at default incarceration proceedings by investigating how frequently certificates are currently issued for these proceedings, considering the issue of consistency of practice in family courts regarding warrant of committal proceedings, looking at different options for providing assistance to payors at these proceedings, and gathering suggestions from the committee prior to the next meeting.
  2. Legal Aid Ontario will follow up on whether clients (or shelter workers who work with clients) were surveyed about the two‑hour authorizations.
  3. Legal Aid Ontario will follow up to ensure that the Aboriginal Justice Strategy is connected with the Indigenous child welfare system regarding the development of new training for working with Indigenous families.

8. Other business

None raised.