Recent changes to government funding to Legal Aid Ontario (LAO) are having a significant impact on domestic (non-child protection) family mediation.

Until these changes, family mediators, who often work with unrepresented parties, were able to rely on LAO support for their clients in the following ways:

  1. LAO offered special 6 and 10 hour certificates to support mediation clients and clients negotiating separation agreements. The financial eligibility criteria for these special certificates were quite a bit higher than for standard certificates. For mediation certificates, if one party met the financial eligibility threshold the other could have income up to $50,000 and still qualify.
  2. Unrepresented clients could obtain limited summary legal advice on many topics from advice counsel in any family court.
  3. Clients in court, who chose to try to resolve their matter in mediation, could access free summary legal advice (on issues of custody, access, and child support) on the day they were mediating, without necessarily having to meet income criteria. Such advice could come from either duty counsel or advice counsel.

All of these supports are now gone or severely curtailed.

In the Ontario Superior Court of Justice, there is no more duty counsel and no more advice counsel. Clients using mediation services in those courts will need to go to a Unified Family Court or an Ontario Court of Justice to find summary legal advice, if they qualify for it.

In courts where there are still duty and/or advice counsel, income restrictions are being enforced now in all cases, restricting summary legal advice to all but the most indigent.

The special 10 and 6 hour certificates have been withdrawn. This is particularly heart-breaking for recipients of social assistance who are seeking spousal support. Because they are not eligible for summary legal advice on spousal support entitlements or amounts from duty or advice counsel, a pilot project had just begun with such clients working with the Toronto subsidized family mediation service and the 10 hour separation agreement certificates. With the withdrawal of these certificates, such clients must now seek to negotiate spousal support without legal advice unless they can obtain it at a clinic, which is rare.

There are also new restrictions on LAO standard “litigation” certificates. The new certificates limit case conferences in a case to two, so if a judge suggests at one case conference that a family try mediation and then report back at a later date, both case conference dates will have been used.

These changes present real challenges for family mediators. Here are some things mediators can do:

  1. Connect with your local family law bar and find out who offers unbundled legal advice. Try to build a referral-based relationship with trusted lawyers who will offer affordable and ideally flat-rate services for mediation clients. Have the website for the Family Law Limited Scope Services Project on your speed-dial.
  2. Be familiar with all the available free resources (including duty and advice counsel, clinics, and organizations) and any eligibility criteria for those services. A list of resources to consider is in this newsletter.
  3. Remind counsel that the subsidized mediation service in your area offers free intake meetings. These are confidential and free. Even if the matter does not proceed to mediation, the intake itself is a great opportunity for clients to learn more about legal and other resources available to support them as they seek to resolve their family law matters.
  4. Counsel who are working on a certificate can work closely with the local mediation service provider to keep legal costs down. Many court connected mediators are lawyers themselves. They can mediate financial disclosure, basic child support and many other matters, saving legally aided lawyers’ fees for the more difficult issues. The more closely the lawyers and mediator work together, the more efficient and effective their combined services can be.
  5. Family mediators will need to know more law. All mediators should be upgrading their family law training.

More information from LAO and some Q’s and As for lawyers can be found at http://legalaid.on.ca/en/info/2019-service-changes.asp#family

Hilary Linton and Elizabeth Hyde, are the principals of mediate393 inc. Toronto.  mediate393 manages the court connected mediation services in Toronto, both on-site and off-site.  Free and subsidized mediation services are available for clients who are in court, and also for clients who are trying to avoid starting a court case.  Visit http://www.mediate393.ca  for more information.

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