FAMILY LAW ADVISORY COMMITTEE

December 1, 2009

EMERGING THEMES

• Compensation for lawyers is inadequate • Financial eligibility thresholds are too low • Family law clients would benefit from a focused intervention at the outset of a case which includes participation in a mandatory information session and a case assessment • Appropriate family law matters should be diverted from the litigation stream and sent to mediation • Child Protection is a distinct practice area and has different challenges from domestic family law:  The tariff hours are inadequate to properly represent someone in a CFSA matter  The bar is greying but there are limited opportunities for training and development  LAO should establish a Big Case Management Office for complex Crown Wardship No Access cases

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LAO’s Role in the Justice System

• Statistics indicate that a large number of cases in family court involve people who would qualify financially for legal aid • These statistics further indicate that a large number of cases involve people who earn less that $40,000.00 and are not represented • A significant number of those who use the courts are low-income Ontarians • LAO services are an integral and important part of the justice system • LAO has expertise in family law and in particular how to deliver family law services to low-income Ontarians

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Allocating the Investment

• Trebilcock: “As a percentage of the population, fewer and fewer citizens qualify for legal aid, and many working poor and lower middle-income citizens of Ontario confront a system which they cannot access and which they are expected to support through their tax dollars even though they themselves face major financial problems in accessing the justice system” • 50% of LAO’s budget is spent on certificates (both criminal and family) • Based on LAO’s historical allocation of resources, the family law program portion of the $60M investment is 11.5M

• Low income Ontarians comprise a larger group than those who are financially eligible for certificates.

• By providing access to information and case assessment services, LAO can deliver services to a wider group of low-income Ontarians.

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Chart 1 – Estimated Funds Needed to Increase

Child Protection

Fees

$25.0

+$6.0 M +$4.6 M Current Cost +$3.2 M

$20.0

+$1.8 M +$1.4 M +$0.7 M

$15.0 $10.0 $5.0

Notes and Qualifications

•Estimates are subject to several variables and assumptions and must be taken as general estimates for discussion purposes only.

•Estimates assume 3 tiers •Estimates

do not include

potential costs or efficiencies of other initiatives $ $77.56 $87.26 $96.95

$81.44 $91.62 $101.81

$85.32 $96.00 $106.65

$88.00 $99.00 $110.00

Lawyer Rates Tier I, II, III

$96.00 $108.00 $120.00

$140.00 $117.00 $130.00

$112.00 $126.00 $140.00

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Chart 2 – Estimated Funds Needed to Increase

Domestic Family

Fees

+$13.9 M +$18.1 M Current Cost +$2.0 M +$4.1 M +$5.5 M +$9.7 M Notes and Qualifications

•Estimates are subject to several variables and assumptions and must be taken as general estimates for discussion purposes only.

•Estimates assume 3 tiers •Estimates

do not include

potential costs or efficiencies of other initiatives

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Chart 3 – Estimated Funds Needed to Increase

All Certificate

Fees

Current Cost +$9.2 M +$18.4 M +$24.8 M +$43.8 M +$62.7 M +$81.7 M Notes and Qualifications

•Estimates are subject to several variables and assumptions and must be taken as general estimates for discussion purposes only.

•Estimates assume 3 tiers •Estimates

do not include

potential costs or efficiencies of other initiatives

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Domestic Family Law Support for Reform

• The Mamo Report (2007) • • • • Recommended implementation of mandatory information province-wide Supports triage FLIC should be entry point into the system for most cases Mandatory mediation should be required for custody/access disputes, motions to change and child support variations • • Family Law Process Reform (OBA et a. 2009) Facilitating Access: Report of the Family Justice Working Group on Parenting and Contact Enforcement and Jurisdiction (2009) (Draft Report) • • • • • • Recommended mandatory attendance at a family information session where children are involved Cases should be triaged by case assessment coordinators at outset where the matter will be screened for domestic violence. Referrals to mediation for cases that are not fast tracked to court Case assessment coordinator should refer appropriate cases to mediation Recommends mandatory parent education Recommends that jurisdictions consider how to, at an early stage, help parents identify issues and guide them to appropriate services Recommends that jurisdicitons continue to promote participation in mediation

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Legal Aid Review

• In the face of serious issues confronting the legal aid system, it becomes increasingly important that LAO be much more strategic, innovative and experimental in its approach to service delivery • The need for innovative service delivery mechanisms is particularly acute in the area of family justice services • LAO should play a leading role in promoting changes to the justice system which benefits its clients - Trebilcock Report

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Child Protection Matters

• • • • •

The Tariff

Requests for discretionary increases are paid on over 30% of CFSA cases Payments for discretionary amounts accounts for 18% of all money paid on account of CFSA certificates 95% of the amount billed to LAO is paid. This means that LAO largely approves requests for discretion MAG’S Advisory Committee on Attracting New Lawyer’s to Child Protection Law is issuing recommendations on tariff restructuring and increasing tariff maximums.

Our analysis of data indicates that a significant percentage of CFSA cases which do not go to trial are billed at or around the tariff maximum. If it is true that practitioners have adjusted their practice in this area to mirror the tariff, then a significant increase to the tariff will significantly increase the number of hours billed.

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Child Protection Matters

Training and Development

• LAO currently does very little up front active recruitment, training and mentoring of CFSA matters. • Should LAO play a role in recruitment of and training and development of private bar lawyers to do CFSA matters?

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Child Protection Matters

Big Case Management

• Criminal BCM Office Criteria for admission:

 Case will cost over $20,000.00

   Lawyer must write letter and request case be admitted Lawyer recommends budget Budget is reviewed by peers (the “exceptions committee”)  Exceptions committee makes recommendation to the LAO

• Big Child Protection Cases – Over $20,000

– 6% of CFSA expenditures – 50 cases per year or 0.5% of all CFSA cases.

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Recommendations General

• Should LAO increase the tariff for family matters?

• Are there cases in which a lawyer should be paid a higher hourly rate because of the nature of the case? Which cases?

• Should we offer higher compensation to certain lawyers? What should be the criteria?

• What is the role for block fees in family law?

• What other supports could LAO put in place to assist lawyers who do work for LAO?

• Other recommendations?

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Recommendations Domestic Family Law Model

• What role should LAO play:  In developing and implementing a mandatory information program for use by all users of the family justice system?

 In delivering assessment and triage services for use by all?

 In developing and delivering mediation services?

• Other recommendations?

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Recommendations CFSA Matters

• • • • • • Should LAO seek to restructure the tariff for CFSA matters?

If LAO is involved in recruitment and retention efforts what is the best use of LAO resources:    Training programs?

Creating articling opportunities?

Expanding junior counsel program to include using junior counsel from the outset of a case?

Should LAO consider a BCM office for CFSA cases?

When should a CFSA matter qualify for admission to the BCM program?

Should there be criteria for lawyers to be admitted into BCM program?

Other recommendations?

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