As the start of another new year is upon us, many family law lawyers will either smile at or dread the deluge of work that usually comes with potential clients who make it the New Year’s Resolution that this will be the year they take their ex-spouse, ex-partner, or ex-romantic liaison to court.
However, with the hope of a new year come the realities of last years financial challenges – higher than expected interest rates, bigger bills, higher costs for goods and services, and the higher cost for lawyers. This means that some clients who a could have afforded a lawyer last year, to help them out with their family law legal issues, can no longer do so. Those who cannot turn to family/friends to help them out, or who would rather not represent themselves in court, have another option: they can ask for Legal Aid Ontario (LAO) to provide them with high quality legal services, in and out of the courtroom.
To make full disclosure. I was employed with LAO from 2000 to 2018, and in my 6 years before joining them, and in the 6 years since we parted ways, I have done duty counsel work, certificate work, or both, to provide services to many family law clients. The provision of services by LAO is a wonderful government funded program that many clients should be grateful to have, as many people across the country, and in other countries around the world, do not have the robust and exceptional legal aid services we have here in Ontario. It is not a perfect system, and it is perennially underfunded, but it does what it can, with the limited funding it has, to allow clients to have meaningful access to justice in many of our courts.
This blog will give you a brief highlight of the services LAO offers and how the can access this services. It is trite to say that if anyone has any questions about LAO, its underlying legislation, its service delivery models, or any other related questions, I direct you to their website www.legalaid.on.ca for the answers.
What is LAO? What Areas of Law Do They Cover?
Legal Aid Ontario is a government funded not-for-profit agency that provides high quality legal services to low-income people in Ontario in the areas of criminal law, family law, child protection law, and immigration/refugee law. It should not be confused with the many Legal Clinics that operate across the province who provide services to clients in many tribunal-based areas of law, such as Landlord-Tenant matters, Workers Compensation matters, Human Rights matters, Social Assistance Review matters, etc. Although the clinics receiving substantial funding from LAO, they are operated independently by their own community boards.
What Services Are Offered to Family Law Clients? Where are They Offered?
A number of years ago, LAO decided to offer clients a spectrum of services that would suit the client’s legal needs at the time they interacted with LAO. These include:
- Summary Legal Advice (this can be in-person, but is generally over the phone, depending on where you are located in the province)
- Assistance with Simple Document Preparation (this can be in person, but is generally over the phone, depending on where you are located in the province) –
- Limited One-on-One Advice/Document Preparation (usually in person, and usually only to women who are victims of Domestic Violence)
- Expanded Duty Counsel Advice/Document Preparation (usually in person, but not always, and usually limited to simple motions to change)
- Duty Counsel Representation (depending upon where you are in the province, this can be in person, virtual or by phone, and it is limited to service for matters where the client is in select family court matters that same day)
- Certificate Representation (full-service representation for your family law matter, based on a certificate that pays the lawyer a set for fee for a set number of hours to complete your case)
Up until Covid-19 made its presence known in March 2020, LAO had a physical presence in every family courthouse across the province. Over the last year or so, things have been going back to normal, but it is still quite different from what it was before Covid-19. Depending on where you are in the province, some services will be provided virtually/by phone, and other services will be in-person. It’s best to call LAO at 1-800-668-8258, or check out their website, to find out what services are offered where you live, or where you are proceeding to court (which is not necessarily the same).
Who Provides the Service? Am I Getting a Real Lawyer?
Whenever I do LAO work, I am often met with the comment that the client wants a “real lawyer” to provide them with the service they need. We are real lawyers, no matter how we provide services to our family law clients. I can assure you that each lawyer who provides the family law services is a licensed member of the Law Society of Ontario, and is prepared to offer their services to LAO, in one of three ways:
- as a staff lawyer employed by LAO and thus paid directly as an employee of LAO (and not the client);
- as private bar lawyer who agrees to provide duty counsel services, paid for by LAO (and not the client), on a set day for a set fee; or,
- as private bar lawyer who agrees to provide certificate services, paid for by LAO (and not the client), for select family law services and for select number hours of service
In some cases, LAO will also use qualified and experienced non-lawyer staff to help family clients, such as in document preparation services. These services are always under the supervision of LAO staff lawyer.
What’s the Difference Between a Staff Lawyer and a Private Bar Lawyer? (And Why Am I Not Getting My Own lawyer?)
With regards solely to services offered by lawyers, LAO uses a hybrid model of services, in that they match the service to meet the client needs. Much like in public healthcare, you don’t always need a surgeon (the costliest service) to offer you a service that a pharmacist can give you. It will depend on the exact need at the time.
Sometimes, you need urgent help, and so you need to go to a medical clinic. This would be the equivalent of the staff or private bar duty counsel lawyer service. They are lawyers, but not your lawyer, beyond that moment in time when you need to speak to them, or you need them to represent you in court for just that day.
However, much like in healthcare, this service is not enough, and you need continuity in your legal care. This is especially the case for more complex matters that will not likely resolve in just one court appearance. In simple, terms, the more complex the case, the more specialized (and thus, the more costly) service you will need from LAO. This is the certificate system, and the lawyers who accept certificates are referred to as “certificate lawyers.” There may be rare cases were LAO staff lawyers accept certificate work, but generally speaking, members of the private bar do these more demanding cases.
Does Everyone Qualify for LAO Services?
The simple answer is “it depends.” And it depends on the service you are seeking.
Simple Advice
If you are seeking advice, everyone is entitled to up to 20 minutes of basic, non-case-specific advice from duty counsel. That means that anyone, regardless of their income, can get some simple advice, but it will not necessarily answer any questions specific to your case. It is the equivalent of looking some information up online and getting the answer. And it will likely be limited up to 20 minutes. If the lawyer can give the advice in two minutes, that’s all you may get, depending on how busy they are.
DC Help
If you want in-court duty counsel (DC) help or representation, LAO uses a two-step qualification process to assess whether DC can help you:
- Do you financially qualify for DC help?
- Is the matter within the scope of DC to assist?
To financially qualify for DC help, you must first complete a simple financial eligibility test that takes about 30 seconds to complete. Please see LAO’s website for the DC test.
To otherwise qualify for the DC help, there are only certain issues and certain steps that DC can help you with. They’re a great resource, but they are limited as to what they can do for you. These include first appearance matters, case conference, simple motions, simple FRO hearings. They may not go in for settlement or trial management conferences, and certainly for nothing complex, like a complex or long motion, a trial or an appeal. They will also not assist you with anything dealing with divorce, property division, adoption, or anything else that may be too complex for quick DC services.
Certificate Help
If you want a certificate, LAO also uses a two-step qualification process to assess what service they can offer you.
- Do you financially qualify?
- Is the matter within the scope of a certificate?
To financially qualify for a certificate, you must first complete a more detailed financial eligibility test that takes about 20 minutes to complete. This is generally done over the phone with the help of staff at LAO’s Client Service Centre. Once again, as the test may vary form time to time, please check LAO’s website for the most current financial eligibility test for a certificate.
To otherwise qualify for a certificate, LAO will only issue a certificate if the matter is sufficiently complex enough, where DC cannot otherwise assist you with its resolution. These include matters involving complex parenting issues, cases involving domestic violence, complex support and property issues. LAO does not generally issue a certificate if the only issue in dispute is a simple parenting issue, a simple support issue, or a simple property issue (sale of house followed by equal sharing of proceeds). Generally, they also do not provide certificate coverage for divorces, whether as a stand-alone issue or with other issues in dispute. In rare cases, they may issue a certificate just for a divorce, but they will only cover the disbursement costs of a divorce. Most family law lawyers do not find such certificates financially viable to accept them.
Is a LAO certificate a “blank cheque” for legal help?
Absolutely not. Even if you get a certificate, there are terms and conditions to it. Depending on your assets, they may require you to sign alien agreement with them, so that any monies they pay to the certificate lawyer (plus an administrative fee) are repaid to them via a lien on your property. Most clients frown on this option, but as I ask my clients, what would rather have me do: send a bill at my LAO rate of about $130.00 per hour, which you will only have to pay off when your sell or re-finance your home, or at my private rate of $400.00 per hour, which you must pay immediately?
As well, the certificate sets out to the lawyer what they will authorize to be done on your certificate. Usually there a blocks of time that the lawyer can work on certain issue, or for certain steps in the case, and when they exhaust those hours, they must write to LAO to ask for more hours. Eventually, LAO will say to the lawyer, who will in turn say to you, that there is limit as to what can be billed on the certificate. So, heed the warning: if you spend all of the LAO certificate time calling the lawyer for updates, or to complain about the other side, or for other less critical matter, you will spend all those hours and leave nothing for the lawyer to use when it comes time to go to court. It’s like a car: you can drive around and around, spending gas money, but go nowhere, and you will have to fill up the tank eventually. And there will come a time where the car will not move because you needlessly emptied the tank.
What If I am Not Granted DC Help or Certificate Help? What Can I Do?
If DC advises you that you do not qualify for their assistance, there’s very little you can do. If you feel you have been unfairly treated in the determination of your eligibility, you can make a formal compliant to LAO’s Provincial office, and they will determine whether the local staff got it right, or they did not. It will not help you in the moment, but I refer you again to their website, where they provide a form for you to complete and send to them if you are not happy with their services.
If LAO determines that you do not qualify for a certificate, you can appeal their decision and another body within LAO will revisit the matter to see if a certificate should issue, or whether the proper decision was made to refuse the issuance of a certificate. It is a fairly quick process.
Conclusion
There is plenty of other information about getting help from LAO for your family law matter. It is beyond the scope of this blog to provide a comprehensive review to you – that is why I recommend you visit their website and go over the questions you may have of them. If available in your area, also attend at the local family courthouse and ask questions about LAO family law services, in and out of the courthouse. The staff there are knowledgeable, friendly and are eager to help. I know, because I was one myself, once.