Board advisory committees

Meeting of the Legal Aid Ontario family law advisory committee to the Board on September 30, 2015

Committee members

John McCamus (Chair); Nicholas Bala; Leighann Burns; Pam Cross; Nikki Gershbain; Jean Hyndman; Lucy McSweeney; Laure Prévost; Joanna Radbord; Louise Toone; James Yakimovich (LAO Board liason).

1. Welcome and introductions

The Chair opened the meeting and welcomed those present.

2. Minutes, March 9, 2015

The minutes of the March 9, 2015 meeting were approved.

3. LAO business planning slide deck and discussion

The Chair presented an overview of the September/October 2015 update on current and future LAO initiatives slide deck. The slides provide an update on current LAO initiatives and a look ahead at what may be in next year’s business plan. LAO is required to file its business plan for the following fiscal year by the end of December.

An exciting development at LAO has been the expansion of financial eligibility for legal aid and the introduction of new legal aid services, both made possible by new funding from the province to support expanded eligibility. The deck sets out the four major changes to eligibility that have occurred over the past 12 months:

  • In June 2014, LAO introduced new family law services for independent legal advice and separation agreements.

  • There have been two six per cent increases to the financial eligibility guidelines, one in November 2014 and one in April 2015.

  • Expansion of legal eligibility occurred in June 2015, when LAO began to cover new types of cases in criminal, family, refugee and mental health law.

The impact of these changes has been tracked by LAO and is set out in the charts. LAO believes that approximately 20,000 additional certificates will be issued this year as a result of eligibility expansion.

Twenty per cent of the new eligibility funding was allocated to the legal clinics and Student Legal Aid Services Societies (SLASS). Clinics and SLASS were consulted on the distribution of the funds. Some of the money was used to address funding problems caused by demographic shifts that resulted, over time, in some clinics having a greater share of the low-income population in their geographic area.

Other current initiatives include LAO’s ongoing support for clinic transformation. Although one large project, for transformation of the Greater Toronto Area (GTA) clinics, is not going ahead since the group leading the project determined that there was a lack of consensus, some of the GTA clinics are working in smaller groups to develop other ideas. In other areas of the province, clinics are working collaboratively on transformation initiatives that will achieve cost savings and increase client service.

The Attorney General has established a justice roundtable and two sub-tables, focused respectively on family and criminal law. LAO is actively involved in supporting this process. The family table is looking at ideas for modernizing and streamlining the family court process, beginning with a focus on how clients are triaged through the family justice system. The first meeting is taking place on October 1, 2015 and the second is scheduled for October 29, 2015. It is not clear yet who the other participants at the family justice table will be, and whether the submissions will be made public. LAO will report back to the committee on what was learned at the first meetings. Feedback from members would be welcome.

LAO policy counsel for family law reported that LAO will be talking at the October 1, 2015 meeting about its early information and advice services, and will recommend principles for client triage as well as ideas for improving existing triage processes. There are two kinds of triage to consider—triage through the court system, and non-court system triage, which includes mediation, negotiation and separation agreements. LAO’s proposal is that these two kinds of triage be looked at together in a way that is user-oriented, and that will give people a sense of how they might flow through the system and reach a predictable outcome. Specific ideas include better integration of legal and non-legal services, making services available at a greater number of access points, and creating a “navigator” position to help clients move through the system.

LAO continues to focus on service strategies to support vulnerable clients.

The first strategy at LAO was the Aboriginal Justice Strategy (AJS), and through it LAO focuses on specific initiatives each year. This year the priorities have included expanding Gladue report writing services and developing cultural competency training for LAO staff.

LAO’s Mental Health Strategy (MHS) has been in development for some time and the strategy blueprint will soon be made public. Several MHS initiatives are already getting underway, including the mental health appeals program and collaboration with the Mental Health Commission of Canada to develop training.

The third client strategy to be introduced at LAO will be a Domestic Violence Strategy (DVS). LAO’s Director General, Policy and Strategic Research, provided the committee with an update on the DVS. A strategy consultation paper was released in the summer, setting out what LAO has learned through pre-consultations and needs assessment. A link to the paper on LAO’s website is included in the slide deck. Between now and December, around 30 in-person public consultation sessions will be held around the province, and so far approximately 400 people have registered for a session. LAO is also holding meetings with organizations and individuals. To date, the feedback has been positive. Participants will receive a roll-up of the consultations and a draft strategy paper will follow in the new year.

Bail is an area in which LAO is interested in doing more to address systemic problems. New and expanded bail services were included as part of legal eligibility expansion in June, and LAO also has other ideas for bail. They are outlined in a draft strategy paper that LAO would be pleased to share with the committee for feedback.

LAO is consulting with its Prison Law Advisory Committee on client needs in the prison setting. The Queen’s Prison Law Clinic has new funding and will be expanding its services. Over the past year, LAO has improved processes and policies for its support of test cases through the Group Application and Test Case Committee (GATCC).

Looking ahead to planning for 2016/2017, a top priority for LAO will be continuing to implement expanded eligibility. There are four years of committed funding from the province. In the fourth year, 2017/2018, the amount of funding for increased eligibility that will be added to LAO’s base budget will be $67 million. The three years of funding from the province for family law initiatives is expiring, but the improvements and new services that were introduced using that funding (new family law certificates, improvements to the child protection tariff, and expansion of the Family Law Service Centres) will continue. Whether or not LAO will be able to introduce another round of legal eligibility expansion will depend on whether funds are available based on the cost of implementing the first round.

LAO’s environmental scan process will also consider fiscal challenges. The new eligibility funding can only be used to provide services to new clients, and LAO must absorb the cost of unfunded tariff increases. The province, which is working to pay down its deficit, has introduced a cost-saving review process.

LAO’s planning process will consider provincial priorities, as outlined in the Premier’s mandate letters to ministers, and will take client and service trends into account. A major trend that LAO is following is the decline in criminal charges coming to the Ontario Court of Justice; there has been a drop of approximately 18 per cent over the past five years. This has had an impact on the criminal bar, although new legal eligibility coverage is helping to increase the number of certificates issued for criminal matters. Certificates for family law matters are on the increase, although child protection certificates are down, and the number of certificates issued for refugee law matters is on the increase. With respect to service provider trends, there has been an increase in the number of new lawyers doing legal aid work.

In addition to expanded eligibility, LAO’s likely priorities for 2016/2017 will include continued work on the priority client strategies. Other ideas from the business plan include a focus on transparency and a review of the hourly allocations under the legal aid tariff.

Committee members provided input and advice:

  • LAO’s progress in providing new services and issuing more certificates for family law matters was described as very encouraging.

    Members were hopeful that the Family Justice Table process would lead to good things, but found the process to date had been somewhat mysterious. The fact that invitees had not been provided with a discussion paper or other documentation, objectives or timelines suggests that a major transformation process should not be expected. Members expressed the view that they would have liked to see more transparency around the process.

  • The opportunity for staff from another government agency to attend LAO’s domestic violence awareness training was raised as a good example of agencies working together and saving public dollars by not having to reinvent the wheel. It would be good to have the same opportunity when LAO rolls out its Aboriginal cultural competency training.

  • Travel is a challenge for people in the northern part of the province who are hoping to attend one of LAO’s consultations on developing the DVS. For example, for one member of a women’s group, it would take 16 hours to travel to a consultation in Sioux Lookout. LAO could consider using technology as an attendance option for those who need to travel long distances to participate in consultations in the North.

  • LAO’s work on bail is important. There was interest in seeing the paper on bail that LAO has developed. It was pointed out that the rights of the accused and the rights of victims are both important, and that there is a need for awareness and the use of multiple lenses when looking at bail services and issues. Because bail can and does go wrong, there is a need to look at bail through a violence against women (VAW) lens. It was suggested by a member that LAO could look at providing services to victims that go beyond what is available through the victim services program.

  • Members were encouraged to hear that younger lawyers are engaged in doing legal aid work. This general trend applies less to the child protection bar, although it was noted that LAO and the OCL have both done good outreach with the law schools to encourage new lawyers to consider child protection work.

4. Family law update

LAO’s policy counsel for family law provided an update on family law initiatives. LAO is in the early stages of looking at two potential legal eligibility expansion initiatives in family law that were not included in the first round of expansion in June 2015:

  • A limited small-scale pilot for providing service to high-conflict families.
  • Provision of community-based integrated services for financially eligible victims of domestic violence.

After the SLASS received new funding from LAO to provide family law services, the judiciary raised concerns about whether law students were able to appear on family law matters in court. LAO has worked with the SLASS, the Law Society and Pro Bono Students Canada to address these concerns. In June 2015 the Law Society’s by-laws were amended to clarify and amend the rules on when students can provide family law services. LAO has also worked with the Ontario Court of Justice (OCJ) on guidelines for students appearing on family matters in the OCJ. These guidelines were finalized in August.

In November 2014, LAO introduced reforms to the Child and Family Services Act (CFSA) tariff. LAO also recognizes that there have been changes on the domestic family law side that have increased the amount of time that lawyers spend on these cases. LAO has received a submission from the Family Lawyers Association proposing areas for domestic family law tariff reform. The new eligibility funding cannot be used to address tariff issues, and LAO will need to proceed carefully. Data on the financial impact of the CFSA tariff reforms will help to inform LAO on what may be possible in the domestic family area.

LAO is also interested in updating its family panel standards. Areas for consideration include stronger domestic family and child protection panel standards, new domestic violence panel standards, a panel for consensual dispute resolution and a special panel for lawyers working with First Nation, Métis and Inuit clients. These ideas will be developed further, in consultation with the committee and others.

Committee members provided input and advice as follows:

  • It was pointed out that there is no single definition of a “high conflict” family matter. Professors Michael Saini at the University of Toronto and Rachel Birnbaum at Western are doing work to develop an instrument that could be used to identify these matters. People tend to combine high conflict and domestic violence. There is a need for clarity.

  • Members were pleased to hear that agreement had been reached and guidelines developed on where and how law students can deliver family law services. This was a big project, and it would be good if it could be expanded beyond the OCJ to Unified Family Court (UFC) sites. It was anticipated that the SLASS and the Superior Court will work together towards allowing students to be involved in similar ways at UFC sites. The result will be that SLASS will be able to provide better services to clients.

  • It was noted that few articling jobs have a family law component. Mentoring is important. Having junior counsel work on cases through LAO’s Second Chair program will be helpful in this regard.

  • LAO’s work on family law panel standards should also include consideration of a panel for lawyers working with youth. Young people who are in the child welfare system and who are charged with a criminal offence are a particularly vulnerable population and they face different legal issues. Lawyers require different skills. There are real concerns in this area; it was felt that lawyers should have to complete training before working with youth who have become involved in the criminal justice system. The OCL and Justice for Children and Youth would support such an initiative.

  • Training on use of LAO’s billing system is also a good idea for panel lawyers. It was noted that LAO has made substantial improvements in this area, and that the billing process is now much more user-friendly.

5. Consultation on advisory committee public postings

The Chair introduced a proposal to make the advisory committee process more transparent by posting committee members’ names, public versions of the meeting minutes, and committee materials such as the general slide deck on the LAO website. Members were asked for their input on this proposal, which the Board is considering, subject to a consultation with each of its advisory committees.

Members emphasized that transparency matters. Stakeholders, particularly members of the bar, want more information from LAO and making these materials accessible would help. Also, it will be a good thing if the public can see that people are working together to solve problems and use taxpayers’ money wisely, rather than working in expensive silos.

It was felt that the information in the slide decks would be useful to many people.

It was agreed that members’ names should be disclosed, but comments in the minutes should be anonymized.

Members did not believe that transparency would fetter committee conversations. It was also pointed out that LAO may hear from some groups that disagree with LAO’s direction, but this is not a sufficient reason for not being transparent.

6. Action items

  • LAO will report to the committee on what was learned from the first Family Justice Table meetings.

  • LAO will share its paper on bail system issues with members of the committee.

7. Other business

None raised.