Legal Aid Ontario has more than doubled the number of hours family lawyers can spend on child protection proceedings and more good news is coming with the provincial government expected to make an announcement soon about expanded eligibility for legal aid.
Family lawyers working on Crown wardship cases through legal aid certificates will now have up to 45 hours to work on society and Crown wardship files. That’s an increase from the previous 22 hours for Crown wardship certificates and 19 hours for society wardship matters.
Lawyers can also now take up to 10 hours for status reviews in uncontested matters and 25 hours in contested files.
“What we’re doing is significantly increasing the hours for lawyers who represent parents in [children’s aid society] proceedings to allow them to offer more effective representation in what are some of the toughest cases around,” says Aneurin Thomas, director general of policy and strategic research at LAO.
He notes the change is good news for clients who can expect more service increases as the provincial government prepares to give LAO additional funding to boost legal aid eligibility in the near future.
“We actually expect that in the coming months, we’ll be able to announce more [service improvements] because the provincial government is going to be making announcements regarding significantly increasing financial eligibility for legal aid services,” he says.
The province has yet to outline the details of the funding increase. But LAO’s latest tariff increase for child protection matters is a response to the insufficiency of the previous caps, according to the Family Lawyers Association of Ontario. The organization had complained to LAO about its members not getting compensation for work they did beyond the previous time allowances.
Katharina Janczaruk, acting chairwoman of the association, says the increase is significant but suggests LAO should loosen the guidelines for billing over the time limit as cases can still involve work well beyond the new timelines.
“Certainly, it’s an improvement. It’s a very significant change in terms of the overall time that’s allowed, but what it doesn’t seem to do is address the issue with respect to discretion,” she says.
In the past, lawyers went over the time limit to serve clients without knowing if LAO would pay them for the additional work due to stringent guidelines for discretionary payments, she says. “The discretion guidelines are very rigid. You rarely actually get paid under that, so that issue needs to be addressed,” she says.
For its part, LAO says the new rules will cover 90 per cent of the hours lawyers would have previously applied for through discretionary payments by default.
“If we make these hours within the tariff, it means lawyers will not have to apply for discretion for these proceedings,” says Thomas.
“So in fact, we hope to not necessarily eliminate the need for discretion but to reduce the need for discretion because lawyers will know right up front that they have access to these hours and they don’t have to ask us for those hours after the fact.”
Family lawyer Mary Reilly says the increased hours are significant but only because the baseline was woefully inadequate.
“It is significant but I don’t know about sufficient,” she says, noting that she had a file that went “well over” 45 hours.
The latest announcement is only one among a flurry of recent activity at LAO around family law. Recently, the organization launched a 12-month pilot project that would see full-time family law duty counsel provide some help to litigants who walk into seven locations of the Ontario Superior Court without a lawyer. Duty counsel would help clients change the support provisions in their final order or agreement through Ontario’s dispute resolution officer program, according to LAO.
While duty counsel have a place in the family law system, Janczaruk has some concern that the approach is “a Band-Aid approach to the inadequacies in the family law tariffs overall.”
“Funding should be directed toward litigants being able to retain a lawyer through legal aid. There are instances where duty counsel is appropriate, but for continuing cases that are complex, I don’t think duty counsel can do much more than manage the flow,” she says.
“The difficulty is that duty counsel really doesn’t have a sufficient amount of time to prepare. . . . They cannot possibly know the case as well as a lawyer would if they had known the client from the beginning.”
While the tariffs for child protection proceedings have been a major concern for family lawyers who do legal aid work, the overall time limit for other issues, including custody and support, are inadequate as well, according to Janczaruk.
Janczaruk feels the same way about LAO’s recent move to fund family law services at university-based student legal aid societies. “It cannot replace certificate work,” she says.
This summer, LAO also made an announcement about family mediation. When someone in family mediation is financially eligible for a lawyer, the other party may also qualify as long as the person earns up to a maximum of $50,000 a year. The move was an expansion of a pilot project that started in a few locations in February with lawyers offering up to six hours of advice to clients.
Reilly says the aim to keep litigants out of the courts is laudable but worries there simply aren’t enough hours under the model to provide sufficient help.
“The problem is insufficient time, but they [LAO] are trying and I’ll give them credit,” she says.