Law Times

Page 12 November 3, 2014 • Law Times www.lawtimesnews.com FOCUS Family lawyers leery of legal aid work despite new programs Judy van rhiJn For Law Times E ven as Legal Aid Ontario tries to respond to the issue of self-representa- tion with several family law projects in the works, many family lawyers are still wrestling with whether they can afford to take on legal aid work. Tom Kelsey, LAO's director general for the Toronto north district, is enjoying himself these days as the organization makes one announcement after anoth- er about legal aid increases and projects. "It's fantastic. After years of finding ways to conserve fund- ing, we are now building out in the family law area," he says. The organization has benefit- ed from $30 million in additional provincial funding that's allow- ing it to address areas such as the f lood of self-represented litigants in the family law system. Many of the announcements have involved increased fund- ing to family law service centres across the province, including student legal services at most universities and duty counsel programs. Kelsey notes the most recent announcement on Oct. 20 related to increased billable hours for child protection files. Prior to that, LAO announced the introduction of non-litigation certificates to cover independent legal advice to support mediation as well as the preparation and for- malization of separation agree- ments. Both certificates apply the duty counsel financial eligibility test. For the most part, family law- yers are welcoming the changes. Gary Joseph of MacDonald & Partners LLP says anything that encourages and assists people to obtain legal advice is a positive development. "Obviously, the government is hearing concerns from practising lawyers and, I'm willing to bet, from the judiciary and court administration staff that self-represented litigants cost the system significantly more than lawyer-represented litigants. It is undeniable that self-repre- sented cases take longer to work through the system and take more court time. There are di- rect costs to the legal system and indirect costs to those litigants who are represented. I honestly feel that the involvement of self- represented people is the worst thing that's happened to the legal system in my 37 years of practice." He adds: "Obtaining a certifi- cate for mediation is terrific. There will be faster settlements in some cases and people can narrow the issues in others and at least get some advice in the process." Andrew Feldstein of the Feldstein Family Law Group in Markham, Ont., also applauds the introduction of non-litigation certificates. "It's a wonderful idea," he says. "When you are against a firm that is working on a legal aid certificate, they only have cer- tificates to go to court. They can- not be resolution-oriented right off the get-go. Just commencing litigation increases conf lict in the family. Non-litigation certificates will reduce fees for legal aid and reduce family conf lict without the need for court." Kathryn Smithen, a family lawyer in Toronto who provides resources to self-represented par- ties, admits to having mixed feel- ings about the changes so far. "I sometimes wonder how helpful it is if they are not offering it to the average family. The very poor and the very rich are the only ones who can use the system. Middle- class average families are still out of the loop." LAO is also working to address complaints from lawyers about its administrative and billing pro- cesses. During consultations with several law associations last year, it identified a list of practices that are irritants to lawyers. So far, it has addressed 28 of the complaints raised and is working on another 36 of them. "We are always trying to improve delivery of services to clients, who are our primary focus, and our dealings with the private bar as well," says Kelsey. Smithen says she often sees cli- ents who have gone to several law- yers without finding anyone who wants to take a legal aid certificate. "My experience is that legal aid expects practitioners to carry the burden of doing work without be- ing sure they'll be paid. These new changes have to go hand in hand with creating a system where practitioners want to offer legal aid. Legal aid must make a part- nership with practitioners." Feldstein says that apart from addressing mechanics, LAO could do more to make legal aid accept- able to the family law bar. "If the objective was to get more lawyers to take up legal aid work, they will have to increase the hourly rate. The money is just not there. On legal aid rates, it would be hard for us to afford to function." There have been increases in the hourly rate over the last four years under the 2010 memoran- dum of understanding signed by the Ministry of the Attorney General, the Criminal Lawyers' Association, and LAO. One more increase is due on April 1, 2015. Kelsey hopes all of these changes will encourage another cohort of lawyers to take on legal aid work. "This is a very exciting time for family law from a legal aid perspective in Ontario, particu- larly now that we are moving into a more consensual way of dealing with disputes." LT 'Non-litigation certificates will reduce fees for legal aid and reduce family conflict without the need for court,' says Andrew Feldstein. Access the most up-to-date information on the latest developments in family law. New in this edition • Full text of the Disclosure of Adoption Information Regulation, O. Reg. 272/08 • Full text of the Recommended Standard Terms for Support Orders Regulation, O. Reg. 454/07 • Full text of the Exemption from [Child and Family Services] Act — Mohawks of Akwesasne Regulation, O. Reg. 116/11 • Amendments made to the Ontario Family Law Rules, O. Reg. 114/99 • Amendments made by the certain regulations under the Family Orders and Agreements Enforcement Assistance Act, SOR/2013-104, and by the Civil Marriage of Non-residents Act, S.C. 2013, c. 30 New Edition Consolidated Ontario Family Law Statutes and Regulations 2014-2015 Consulting Editor: Brahm D. Siegel Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986121-65203 $102 Softcover approx. 1340 pages July 2014 Annual volumes supplied on standing order subscription Multiple copy discounts available 978-0-7798-6121-7 Shipping and handling are extra. 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