What is legal aid for family court?
Family Court Legal Aid, as the name suggests, is a subset of legal aid available for Family Court matters. This means that it is financial assistance to help you access the family court system, but does not always mean financial assistance that will pay for (or assist in paying for) a lawyer.
The specific assistance that is provided through Family Court legal aid is LawLine Assistance (simulated Legal Aid), Advice Counsel (Cheque Option) and Family Representation Service (Direct Representation). Some jurisdictions within BC also offer counsel checks for the guardian ad litem process. Below I provide an explanation of each of these services and then discuss the specific eligibility requirements for each service.
LawLine Assistance is provided by trained Family Justice Counsellors through both in-person onsite meetings and over the phone at the Self-Help Family Law Legal Advice Center. Although LawLine Assistance entails free legal advice, it is actually more of a service designed to help you understand what the family court process entails, whether your issue can be litigated and how best to represent yourself. For example, although they cannot provide legal advice with respect to what to include in your application or response, a Family Justice Counsellor can explain what a petition for divorce needs to include and how to make sure it is properly brought before the Family Court. As a part of this project, we have staffed out the Self-Help Family Law Advice Center on a weekly basis. We also have provided a number of live Family Law Legal Aid presentations at our Courthouse Library Resource Center. These presentations give members of the public information about how the Family Justice System works within their jurisdiction. With that background, we have also addressed specific questions and issues during an open question and answer session following the presentation. Family Justice lawyers and trained Family Justice Counsellors have delivered these presentations.
Advice Counsel – Cheque Option are paid legal services with assigned lawyers outside of the courthouse. To obtain Advice Counsel services , you must be referred by a Family Justice Counsellor. The type of work that Advice Counsel perform will range from assessing your case, providing support for trial preparation, and explaining the strengths and weakness of your case. Due to the limited time period for which Services are available, you may not be able to keep your counsel during all stages of your case.
Family Representation Service ("Direct Representation") provides limited family law legal services to low income families. This service is provided by trained family lawyers employed by the Legal Services Society. You must apply through Family Justice Services, and if you qualify are assigned a lawyer to represent you in court for a maximum of 6 hours. Direct representation is only available in some parts of the province, and is only available for one hearing or trial per calendar year.
Eligibility for Family Court Legal Aid is based on both your area of legal aid and your financial eligibility. Although eligibility may vary slightly by area, the same general categories apply.
Specific to Family Court Legal Aid, the Canadian Supreme Court has also indicated that on the basis of substantive equality, Family Law Legal Aid must be available in a timely fashion, with timely reasons for judgment, and that an appeal route must be available. See Society canadienne des traditions orales and Giselle Duc (Appellants) v. Attorney General of Quebec (Respondent). Specifically, the SCC held that civil legal aid is an aspect of procedural fairness. A person cannot fairly and justly defend himself or herself if he or she is unable to bring forth a claim or defence due to an inability to understand or navigate the system. See Trial Lawyers Associations of British Columbia v. British Columbia (Attorney General).
Who is eligible for legal aid in family court?
Legal aid must be applied for and obtained before representation or advice is provided by a lawyer. Therefore, do not attend an appointment with a Family Dispute Resolution Practitioner, a lawyer or a court without having legal aid before you attend the appointment. Centrelink will be able to advise you if you are likely to be eligible for legal aid. To be eligible for legal aid to have a family lawyer assist you with your matter you need to pass a means and merits test. The means test considers your income and assets and how much you contribute to household costs to determine whether you are of limited means. You will be referred to a family lawyer who will then help you to determine if you are eligible for legal aid. If you are not eligible for a grant of aid, a contribution to your legal costs may be required. You are not eligible for legal aid if your matter has no legal merit. This means that your matter should be successful if it is brought in court. For example, you may have no evidence that your children would be at risk of harm with the other parent. If you were successful in court but you have been refused legal aid you can request the Legal Services Commission of South Australia reconsider the decision. You can also apply for legal aid at the same time you have a family dispute resolution appointment at the FRC Cairns. Legal Aid Queensland may refer you to an FRC for family dispute resolution and visa assistance. You will then be referred to Legal Aid Queensland.
Which case types are covered by legal aid?
Although the availability and scope of legal aid varies, certain types of family court cases are typically covered.
Child Protection
Legal aid is usually available to parents fighting for the return of children improperly placed in foster care or to grandparents and aunts and uncles seeking custody of children. Legal aid is also generally available to defend allegations of child abuse, providing the case is appealed from an administrative tribunal.
Divorce
Except for divorce cases involving child custody, legal aid will not provide representation to a spouse seeking merely to dissolve the marriage. But when the divorce is complicated by such issues as the division of property, spousal support or child custody, legal aid may be available. For example:
Separation
Often one partymakes an application for separation which may involve child custody, access or support. Legal aid will be provided based upon the same means and merit test set out above.
Domestic Violence
Legal aid is frequently provided in cases involving charges of physical abuse such as assault, sexual assault and threats of violence. Legal aid will usually be granted:
In addition to the above, legal aid lawyers may take on other family law matters under certain limited circumstances. For example, if a party seeks legal aid to have their spouse undergo medical examinations or psychological testing, or for a guardian ad litem, legal aid lawyers will not be provided.
How to apply for legal aid in family court?
The Legal Aid Agency assesses applications for legal aid in cases involving a child who is the subject of, or is involved in, a family court case, a divorce, a civil partnership dissolution or for private law cases involving children and young people. The LAA also deals with HIV/AIDS foundations to assist HIV/AIDS foundations in the UK or overseas.
You must be able to show that you have a family law problem where someone’s life, health or safety are at immediate and serious risk, or there is a risk of leaving the home due to threat of harm by another. You must also be able to show that other legal services in the voluntary sector are not able to provide you with the advice and representation that you need. Your ability to pay private counsel must also be below the limit.
You should only apply for legal aid if you are unable to afford the cost of representation. You will be required to pay either all or part of your costs, depending on your level of income.
The application process is as follows:
• a vetting check with HMRC to ensure the legitimacy of the applicant;
• completion of an online client details form by the applicant (note, the online application form changes frequently);
• submission of financial and identification documents;
• if income exceeds £7330, the applicant must submit the last 3 month’s bank statements; CCJs, defaults, bankruptcy;
• copies of any relevant documents, such as court forms.
Funding from the LAA is granted on the basis that you have provided sufficient supporting documents to form the basis of a claim. If your application is successful, the LAA will issue a certificate to you or your solicitor.
The LAA may ask you for further information to support your application. This information must be provided in English. If there are supporting documents in another language, you will need to spend the time and money on having these professionally translated.
Pros and cons of legal aid for family court?
As with all Government services, there are both benefits and limitations to accessing legal aid in family courts. This is a somewhat complicated area of law as it is tightly defined and is covered by the legal aid and representation (assessment of resources) regulations. This blog provides a brief overview and assumes that the reader has basic understanding of the family courts.
The Benefits
One of the most important benefits of legal aid is that it is often the only way in which certain individuals can access legal advice and representation. "Family lawyers" generally bill on the basis of time spent, so they may charge high fees for work which can already be stressful and upsetting. For those of lower means, legal aid can be the only way to resolve issues fairly.
The Government is very clear about the cases where legal aid should be granted. These are;
Applications for legal aid will be made by your solicitor, who will decide whether or not you are "eligible" for funding based on a number of criteria, including the facts of your case. The legal aid agency often takes some time to process applications.
The Limitations
However, while getting advice is useful, just as important is being able to represent oneself in Court. Since April 2013, individuals must represent themselves unless they have legal aid, or a solicitor agrees to represent them by way of Legal Aid. Those who have representative pay attention, as it is likely that fees are not covered.
The costs involved with a solicitor representing you include writing of letters and documentation for the court . All correspondence, phone calls and appearances in court are billed to you, the client. When legal aid is used, these tasks are completed and paid for by the Legal Aid agency. If you do not have legal aid and your solicitor agrees to represent you, it is likely that the fees for this work will be paid by you directly.
When an individual has legal aid, £150 is paid for each appointment at court. This fee is for the solicitor’s attendance and is paid even if you do not need the solicitor to speak on your behalf. If your solicitor attends several hearings over an extended period of time, as is the case with all children proceedings, the costs can add up. This is in addition to the fee that the solicitor charges for other Court related work.
Applicants for legal aid should be aware that while getting a solicitor’s advice can be quick and easy, the process for getting a solicitor appointed through legal aid may take more time than expected. Based on the complexity of the case, there can be a significant delay before the applicant is referred to a solicitor. Finding a solicitor who is willing to take a particular case on content of the case, relationship and ability to pay, is the responsibility of the client. While this may seem like a straightforward process, it can be complicated and Pro Bono work, as well as your solicitors’ availability, may impact your legal aid application.
This guide is intended to provide an overview of the process. There will be many other questions along the way, but hopefully this has provided the initial information needed for the legal aid process.
Alternative legal options for family court
If you do not qualify for legal aid or do not want to go through the legal aid process, there are still alternatives available to those of modest means in order to get assistance in the family courts.
Mediation involves having a trained mediator listen to both sides and help them come up with a solution to their problem. A trained mediator can work with a couple to help them find an outcome that both sides are satisfied with. The court can request that they attend mediation if there is a matter before the court. Parties may also choose to go to a private provider of mediation services.
An Alternative Dispute Resolution/Consiliation/Separation Centre is a free provincial resource that provides a range of services to assist separating families. This can include everything from pro bono (free) legal advice to psychological services. Services vary by location but can include brief legal advice with lawyers, low-cost mediation with trained mediators, and child supervision services.
Pro Bono Ontario is a charity that arranges free legal services for individuals and non-profit organizations across Ontario who can’t afford a lawyer and can’t access other sources of legal aid. Pro Bono Ontario assesses each request on a case-by-case basis.
The Family Responsibility Office (FRO) recovers and delivers child and/or spousal support payments from one spouse to another spouse or to the other parent so that the children will receive the necessary child support payments. They will enforce court ordered support payments and ensure that support payments are paid. Also, they are responsible for collecting support payments for those parties receiving Ontario Works, Ontario Disability Support Program (ODSP) income support or Community Start Up and Maintenance Benefit (CSUMB), if the payor is able to pay the amount owed.
The Family Justice Services Office has spaces where several government services work together to provide a broad range of services to parents and children. On a walk-in basis or by appointment, families may receive direct assistance and information about their family law issues from a family law information centre, a Family Court Counsellor and/or a Family Mediation Service.
This is a private service where a lawyer is paid a set fee to represent parties that do not qualify for legal aid or receive no help from a non-profit service. Getting a lawyer to assist with a case can significantly help an unrepresented party.
Legal aid information and help
There are a number of organizations and resources designed to help individuals understand and access legal aid in family court. The following are among the most important resources:
The Office of the Public Defender provides numerous resources for accessing free or low-cost legal counsel across a wide array of practice areas. You can find these resources by following this link and navigating through the various subsections.
The Long Island Pro Bono Services providers a number of resources to individuals looking to secure free or low-fee legal guidance. Their focus is on low-income families across Long Island , and they provide direct representation for some cases. You can find additional information at this link.
Nassau County provides a resource page regarding accessing county legal aid, with links to other key organizations. The page can be found here.
While many people are familiar with the New York City Bar, fewer are aware of their extensive legal guidance resources. They provide a number of free services related to legal information and guidance for those looking to represent themselves. Among these are the Guidance and Referral service, which helps connect individuals with the resources they need for guidance. Their website can be found here.