They say that in life, only two things are certain – death and taxes. After 27 years of practicing law, I would add a third certainty to that mix – the growing unaffordability of family law litigation. When I started my practice in 1994, only 1 in 5 clients in family court was without a lawyer, and, in many cases, it was their choice to be self-represented. After returning to practice in 2019, the tables have turned – now only 1 in 5 clients in family court have a lawyer! In most cases, it is not by the client’s choice. There are several valid, social, economic, political, and other reasons why this is the case, and but that is not the point of this blog. Instead, if you find yourself a little short of money, but in need of legal representation in a family law case, what are your options?
This blog will identify several options, including 1) a legal aid certificate, 2) using duty counsel, and 3) using limited scope services. I will discuss the general in’s and out’s of each service and, where applicable, provide some tips on how to maximize these alternatives. There is a fourth option – self-representation – but I will leave that topic for another day, and another blog!
The Legal Aid Certificate
When faced with the harsh reality that you cannot afford to hire your own privately retained family law lawyer, the first option should be to consider whether you can obtain such a lawyer through the Legal Aid Ontario (LAO) Certificate Program. We are blessed in Ontario with having perhaps the pre-eminent legal aid system in the entire world. Yes, the entire world!
LAO works because if a client applies for and qualifies for their services, LAO will issue the client a “certificate” – it is the document that assures the client and the lawyer that LAO will pay the lawyer. In most cases, the certificate is free, i.e., the client does not have to pay back to LAO what the lawyer has billed to LAO. The benefit is mutual – the lawyer and client both know that LAO will pay for the lawyer’s services at a fixed tariff rate and set allotment of time to help the client resolve their family law matter. Although the LAO rate is anywhere from ½ to ¼ of what many lawyers charge clients privately for their services, the benefit for lawyers is knowing that they will get paid, without chasing down the client for payment, so long as they bill in accordance with the LAO limits as set out on the certificate. Not all lawyers do LAO work, so please check with LAO for a list of lawyers who do.
The amount of time that LAO authorizes on a certificate will depend upon the type of case. A complicated case will require more hours. Uncomplicated cases will need fewer hours. The lawyer will explain to LAO whether the case is complicated or taking along time to resolve and why. However, the certificate is not a “blank cheque.” At some point, LAO will tell the lawyer that there are no more hours left to offer the client. Much like toothpaste in a tube, there is simply no more to give once it is all squeezed out. A good lawyer will let the client know where they are at, and when they are close to reaching the end, well before getting there.
As I said, many family law lawyers take legal aid, but not all of them do. And not all family law lawyers are the same. Make sure whomever you pick is ready, willing, and able to help you, because once you have selected your lawyer, you may not get a chance at a “do-over.” The best way to find a lawyer is to ask others you trust if they have used a lawyer and if they were happy with their lawyer. To get the most out of the certificate, work with your lawyer to ensure that the time they have on your file is used as productively as possible. And finally, keep the lawyer aware of any changes in your circumstances, especially your contact and financial information.
To see if you qualify for an LAO certificate, free or otherwise, please call LAO’s Client Service Centre at 1-800-668-8258, or go online and check out their website at www.legalaid.on.ca.
Legal Aid Duty Counsel Service
If you apply for a certificate and are turned down, do not lose hope – LAO offers another service to family law clients in need of a lawyer. It is called LAO’s Duty Counsel (DC) Program, and it operates much like a medical clinic or a hospital’s emergency room. If you are in court that day and need the help of a lawyer, you can sign up for DC services. The lawyer who helps you is a family law lawyer, either employed by LAO (a Staff DC) or is on a roster of lawyers paid by LAO to be there that day (a per diem or roster DC). They will provide you with some level of service, depending upon your financial situation. Once again, if you go to LAO’s website, it will give you the DC financial eligibility test and other information about DC services.
Even if you make well above LAO’s DC financial guidelines, you can still receive up to 20 minutes of procedural advice on how to address your matter in court that day. But if you financially qualify for DC help, not only will they give you advice, by they will also represent you in the courtroom on such matters as a first appearance, a case or settlement conference, and simple motions under an hour. Most of a DC’s time is spent negotiating terms of settlement to help people resolve their matters on a temporary or final basis that day. They can help with routine family law matters, child protection (CAS) matters, and some FRO (Family Responsibility Office) matters. Much like clinic and ER doctors, they cannot and will not do everything for you, but they will make sure you are correctly “patched up” and given the services you need. The best part – it is a free service to you.
When working with DC, please be honest with them, as any false or misleading information you give them will only negatively impact you and your case. Listen to their advice, but remember, you must decide how to resolve your case. Be patient with the DC, as they can see anywhere from 5 to 25 people on any given day. So please understand that they are “a lawyer, but not your lawyer,” and they are there to help you with your case just on that day.
Limited Scope Services
A growing trend in family law circles is the use of privately retained lawyers for limited scope services. What this means is that you hire a lawyer for a set flat fee (or a fixed hourly fee) to help you with a set of select services, usually spelled out in an agreement. At first blush, this seems like a mix of the two models above. You hire a lawyer who you choose to do a select amount of work for you for a specific price pre-negotiated before you ever step into court. Rather than giving a lawyer a large retainer that you may not have, or may not need to provide, you ask the lawyer to help you with such services as preparing/serving/filing the court documents, preparing the brief, and/or attending at the conference for you, or arguing a short motion. The lawyer does not appear as your “lawyer of record” but as your “agent.” Although their names will not be on the court documents, they will be there to help you in accordance with the terms of your arrangement.
If you are going to choose this legal service method, it is important to know exactly what the lawyer will do, what they will not do, and what your role is in the process. A good lawyer who is retained under this method will have you sign a written agreement that spells out all of these factors, as well as the time limits, the service limits, the rate of pay, and so on.
To find out more about this, please check out the website www.famillawlss.ca.