06 July 2014

Judge Criticizes Limited Legal Aid Funding Available for Family Law Cases

On 3 July 2014, Mr. Justice Crawford, a distinguished judge of the British Columbia Supreme Court for the last fifteen years, released a partial decision in the case of M.J.A. v R.D.A. which, along with addressing custody and guardianship of the parties' two children, offers some commentary on the difficulties facing litigants who represent themselves in court and the sorry state of the legal aid coverage available in family law disputes.

If I understand the facts correctly, the mother started this case in 2010. The trial began with five days in November 2013 and continued over two days in March 2014. Although sufficient evidence was presented that most of the issues could be resolved, the judge determined that a needs of the child assessment under s. 211 of the Family Law Act was necessary and ordered that one be prepared. Both parties were of limited means, and although the father was able to engage counsel, the mother represented herself throughout.

After summarizing the circumstances leading to trial, the judge offered these comments about the mother's self-representation, the difficulty of self-representing and the effect it had on the efficiencies of the trial process, and the woeful state of legal aid coverage in family law matters:
"[11] What has happened is the mother has proven quite inadequate to deal with the circumstances of a court room. Nor have I had the privilege of a current sociological or psychological report to assist the Court in something as fundamental as ensuring the children maintain a healthy relationship with their mother. 
"[12] ... I would note that [Mrs. A] described the task of being her own counsel as 'challenging' and I agree with her, it is an art that only comes with years of labour in courtroom situations. The members of the public that have to go in to a trial process in a courtroom without counsel are severely challenged, and the need for adequate funding for legal aid was yet again played out in front of me. 
"[13] If Mrs. A. had counsel I venture to say the evidence in this matter would have been focused and the trial done in three days and if we had the benefit of a s. 211 report assessing the needs of the children and the abilities of the parents, I would have had a far better understanding of Mr. A.'s concerns and Mrs. A. concerns. However, in the absence of a sensibly funded family legal aid system, I am left to try and assist the parents and especially the children in moving on with their lives, keeping them stable in their father’s house (with his new partner) but seeking to gradually improve Mrs. A.'s access to the children to foster a relationship with her children, an aspiration which I note is shared by Mr. A."
I have often wondered about the difference in the cost of funding the services of a lawyer at legal aid's parsimonious rate versus the total cost to the system resulting from the inevitable delays, adjournments and false starts that occur when a litigant is forced to represent him- or herself. It is really more cost-effective to withhold legal representation from someone rather than cover the cost of counsel at $89 per hour?

(Interestingly, two studies recently completed by the Canadian Research Institute for Law and the Family discuss Alberta lawyers' and judges' views that self-represented litigants :
  • always or usually have unrealistic expectations about the outcomes of their cases;
  • usually or sometimes are less likely to settle than litigants with counsel;
  • generally achieve the same or worse outcomes on parenting issues than litigants with counsel;
  • generally achieve worse outcomes on support issues than litigants with counsel; and,
  • generally achieve worse outcomes on property issues than litigants with counsel.
Assuming that the observations of the bench and bar bear some relation to reality, they are yet another clarion call for the proper funding of legal aid in family law matters.)

One other aspect of this decision is worth noting, namely that the needs of the child assessment was ordered to be prepared by a family justice counsellor, a Ministry of Justice employee attached to the Provincial Court. Said the judge (cites omitted):
"[17] I have advised the parties I will seek a 'Views of the Child' report pursuant to s. 211 of the Family Law Act. In other words under s. 211, I will and do hereby order a report from a family justice counsellor to assess the needs of the children in relation to the family law dispute, the views of the children in relation to a family law dispute, and the ability and willingness of a party to a family law dispute to satisfy the needs of the children. I understand the New Westminster and Richmond Family Justice Centre will authorize the appropriate counsellor who I appoint to assess and report to the Court and to the parties no later than (and hopefully before) November 30, 2014."
This illustrates the rather important power of the Supreme Court to make use of Provincial Court family justice counsellors, whose assessments are prepared at no cost to the parties. Normally, needs of the child assessments used in the Supreme Court are prepared by jointly-retained psychologists, psychiatrists or registered clinical counsellors at a cost ranging anywhere between $5,000 to $15,000 — sometimes higher depending the assessor's need to travel and the complexity of the issues being looking into — and can usually be completed within three to six months. On the other hand, although the assessments of family justice counsellors are free, family justice counsellors are not psychologists, psychiatrists or registered clinical counsellors, only a limited number of them are trained to prepare these assessments and it can take a year or longer before their assessments are complete.

Assuming that the benefit of getting a needs of the assessments for free outweighs the waiting period and other disadvantages, the decision in M.J.A. v R.D.A. will be a useful precedent for lower-income parties.

4 comments:

  1. As the manager of the service providing publicly funded s.211 reports by family justice counsellors I can provide some clarification. Supreme Court Justices and Provincial Court Judges have always been able to make referrals for these reports, previously under s.15 of the Family Relations Act and now under s.211 of the Family Law Act. While we have no screening criteria this service does seem most appropriate for parties of modest means. There are two types of reports: Views of the Child reports and Full reports which encompass a broader scope.

    Views of the Child reports are assigned upon receipt. There is a wait list for the Full reports which is currently measured in terms of several months and fluctuates depending upon the number of referrals in our queue. About ten percent of the total number of family justice counsellors are dedicated to writing s.211 reports, so there are 7.5 positions covering the province. We complete close to 500 reports (combination of Views of the Child and Full) each year.

    Thanks for the opportunity. Debbie Lesurf

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    1. Thanks very much for the information, Debbie, this is very helpful.

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  2. Debbie or JP, can you please advise why the form the Court clerks use to communicate with FJCs about the reports does not simply track the language of the statute? i.e., it does not say what is being ordered is a s. 211 (a), (b), and/or (c)? I've had two experiences now where the order made did not 'translate' to the clerk form and therefore the report writer did not get the proper instruction. Thank you for any information you can provide.

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    1. I'm sorry, but I have no idea. This is the sort of thing that you should bring to the attention of Chief Judge's Office. It sounds like an oversight in the transition from the FRA to FLA, but I can certainly see the mischief the might result. I'd suggest that the new form have tick boxes for s. 211(1)(a), (b) and (c) and another for a fill-in-the-blank "other" reason for the assessment.

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