- Domestic violence survivors have intersecting legal needs and require assistance in multiple areas of law. The different financial thresholds used by legal aid create inconsistencies in eligibility for some clients.
- Individuals who have been subjected to domestic violence have limited access to independent legal advice and legal representation to guide them through the criminal justice system.
- The two hours of independent legal advice provided through LAO’s Family Violence Authorization program do not give clients enough time with their lawyer.
- Clients often seek assistance from multiple access points at LAO before receiving services.
- Certain communities require targeted and tailored services and programs to meet their unique needs. This includes the LGBTQ2S community, communities in rural and urban areas, male clients, and Aboriginal and Indigenous communities across the province.
- Domestic violence clients with mental health concerns have additional vulnerabilities that must be considered by LAO when determining legal eligibility.
- LAO needs to engage more directly with survivors in places where they feel safe and free to share their experiences. Survivors can share their knowledge and expertise on domestic violence and provide advice based on their first-hand experiences in the legal system.
- People who identify as being subjected to abuse must be taken at their word and not questioned.
- To prevent re-victimization, a survivor should only have to tell their story once.
- Legal bullying is a problem. Some people attempt to use the legal process as a way to continue abusing their partner. This is especially likely to occur when one or both parties are self-represented. Legal bullying re-victimizes clients, prolongs cases and stalls resolution in the court system.
- Survivors want legal representation from lawyers who are educated about—and have experience working with—survivors of abuse.
- Clients who have been subjected to domestic violence require additional time with their lawyer to build a trusting relationship.
- Clients need greater flexibility to change their lawyer.
- Clients who are being assisted by an interpreter require additional time to work with a lawyer.
- LAO services need to be better integrated into existing community services. For example, LAO should have staff providing services directly at shelters and other community service locations.
- LAO should better communicate changes to programs and services to the public. This can be achieved through building stronger relationships with local agencies.
- The referral network between LAO and community partners should be improved.
- Individuals need more plain language information on the legal system and LAO services.
Participants also commented on the need for services for those who have been subjected to elder abuse, or abuse by a caregiver. While LAO’s definition of domestic violence is broad, and includes these forms of abuse, this paper concentrates primarily on intimate partner violence, which is violence perpetrated against spouses and dating partners, either in current or former relationships. This does not preclude the expansion of services to more fully address these other forms of familial abuse. LAO will continue to consult with stakeholders and survivors to determine how these needs can be better met.
3. What LAO has done so far: Building the Foundation for a Provincial Strategy
LAO has taken action over the last three years to improve service delivery and increase access to legal representation for survivors of domestic violence. The work that has been done provides the groundwork for the Strategy and reinforces LAO’s commitment to sustainable organizational changes. The following are recent initiatives at LAO that support the on-going development of a long-term strategy:
- Reducing barriers to access In 2014, LAO announced a multi-year plan to expand its certificate program and make more clients eligible for legal aid services. This included increasing access to legal representation for clients who have been subjected to domestic abuse through:
- Increasing financial eligibility guidelines for clients. In 2015/16, LAO saw an additional 4,000 clients who had been subjected to domestic violence receive family law certificates, an increase of 56 per cent over the previous year. The number of clients who had experienced domestic violence and received a family law certificate increased by another 900 in 2016/17, an increase of 67 per cent over 2014/15.
- Making legal aid available to first-time offenders charged with assault against their abusive partner while attempting to defend themselves. LAO has had to currently limit this program to the most compelling cases (see Appendix A).
- Expanding certificate coverage for survivors of domestic violence seeking assistance in Humanitarian and Compassionate (H&C) applications. An H&C application is an application for permanent residence in Canada that may include reasons that do not fit into a traditional refugee claim, such as the hardship an applicant will face if they have to return to their home country.
To address the barriers identified by survivors and supporting agencies, the following protocols are now in place at LAO:
- An individual who identifies as having been subjected to domestic violence is taken at their word and is not questioned or asked for specifics of the abuse.
- To prevent re-victimization, survivors are requested to disclose the abuse only once.
- The first point of referral for a client identifying as having been subjected to abuse is LAO’s certificate program.
- To help identify all forms of domestic abuse, LAO is implementing an improved screening process at the Client and Lawyer Service Centre (CLSC).
- To enhance client safety protections at the CLSC, when an individual discloses they have been subjected to violence, their call is prioritized for quicker service.
- Through a process called Interactive Voice Response, a client can now self-identify that they have been subjected to domestic violence at the CLSC without having to disclose it to the agent. These calls are prioritized and the agent receives a prompt to prepare the agent for the call.
- To improve client safety and protection, the CLSC has implemented enhanced security screening. This ensures that only the client is able to access and change information in their client file.
- making DVAT mandatory for all LAO staff, regardless of their role or amount of client interaction.
- including the full-day in-person DVAT in LAO’s New Employee Orientation.
- making DVAT mandatory for all private bar lawyers on the LAO Domestic Violence Panel.
- offering and providing DVAT to all interested community and speciality legal aid clinic staff in Ontario.
- making relevant resources and all LAO training materials on domestic violence available and accessible to all LAO staff, LAO panel lawyers and clinic staff.
To date, the Strategy has successfully delivered this full-day, in-person course to over 1200 current and former LAO staff across the province and to 800 clinic employees and panel lawyers.
4. Reducing barriers to access
While LAO provides legal services to low-income Ontarians, including those who have been subjected to domestic violence, even those who are financially eligible may face obstacles to obtaining access to legal aid. For example, this may be the result of a language barrier, a physical barrier, or having a legal need that LAO does not provide services for. While these obstacles can apply to anyone, domestic violence multiplies and heightens these barriers. Programs and policies that on their face seem fair may disproportionately impact the unique needs of individuals who have been subjected to violence. Equitable access to services may require different approaches.
What steps can LAO take to further reduce barriers for clients experiencing violence when accessing legal aid services?
4.1 Collaborate with high-risk communities
Individuals who are already facing inequities or are members of marginalized or vulnerable groups are more likely to be impacted by domestic violence. 6 There can be overlap between these and other communities, creating more complex intersections of needs. For example, people of colour, young people, Indigenous women, or men who are HIV positive are all at higher risk for experiencing domestic violence if they are also LGBTQ2S. 7 LAO supports an intersectional approach to addressing domestic violence in all communities and understands that members of communities that have a history of oppression in Canada may be hesitant to seek legal remedies due to distrust of the legal system. It is important for LAO to consider these factors and the unique needs of certain communities and individuals in developing policy and programs. Community expertise can help LAO reach particularly vulnerable groups, and LAO commits to working specifically with these communities to improve access to services.
4.1.1 First Nation, Métis and Inuit
Family violence is one of the most important issues facing First Nation, Métis and Inuit communities in Canada. The Truth and Reconciliation Commission (TRC) of Canada spent six years travelling across Canada to hear the stories of Indigenous Peoples who had been forcibly removed from their homes by the residential schools system and to discuss the ongoing impacts of colonialism. 8 The TRC found that Indigenous women and girls are overrepresented as victims of crimes and are more likely than other women to experience risk factors for violence. 9 Violence within the domestic violence context is the most pervasive form of victimization experienced by Indigenous women. 10 The overall rate of self-reported violent victimization among Indigenous women is almost three times higher than the rate reported by non-Indigenous women and the rate of spousal homicide is eight times higher. 11 12 At the same time, Indigenous women are less likely to report being victims of domestic violence. 13 Amnesty International has called for greater strategizing and coordination to address the pervasive issue of violence toward Indigenous women in Canada. 14
In May 2016, the Ontario government released its own document of reconciliation with the aims of creating a culturally relevant and responsive legal system and reconciling relationships with Indigenous Peoples. 15 Also in 2016, Premier Kathleen Wynne released a long-term strategy to end violence against Indigenous women in the province. 16 This strategy committed to supporting early prevention and to training Crown attorneys on issues related to violence against Indigenous women. 17
In alignment with the objectives of these initiatives, LAO commits to developing early-intervention strategies and training staff on how violence, especially domestic violence, affects Indigenous women. LAO will work with partners in Indigenous communities and with LAO’s Aboriginal Justice Strategy to ensure that client services and programs are designed and implemented in consideration of the unique needs of First Nation, Metis and Inuit clients, including:
- Leaders from LAO’s Aboriginal Justice Strategy will foster relationships with Indigenous community organizations, such as talk4healing, to create opportunities for increased access to justice, such as warm referrals and greater awareness of LAO’s resources in Indigenous communities;
- LAO will continue to support the National Inquiry into Missing and Murdered Indigenous Women and Girls;
- LAO will sponsor culturally-appropriate public legal education about domestic violence and LAO’s range of services; and
- LAO will include domestic violence training in its Aboriginal cultural competency training to foster intersectional approaches to justice.
4.1.2 LGBTQ2S
LGBTQ2S survivors of domestic violence are less likely to report domestic violence and when they do, they are more likely to encounter prejudice and have negative interactions with police. 18 Individuals who identify as LGBTQ2S are more likely to be subjected to abuse from their partner or the person they are dating in addition to having been subjected to abuse as a child. 19 Egale 20 , Canada’s only national charity promoting LGBT human rights, reports that nearly 50 per cent of all same-sex relationships involve some degree of domestic violence, although there is a wide variation in the literature. 21 There is also wide variation of the degree of violence within different parts of the LGBTQ2S community. For example, bisexual women face a significantly higher lifetime prevalence of domestic violence (61 per cent) than lesbians (43.8 per cent) and heterosexual women (35 per cent). As well, trans women are more likely to be subjected to domestic violence and are more likely to experience police violence when interacting with authorities following an incident. 22 All of this speaks to a need to ensure that within the larger DVS there are strategies that address the specific needs of LGBTQ2S communities.
During the consultation process, a few key themes emerged. The main concern was that LAO maintain ongoing consultation with the LGBTQ2S community and collaborate with community organizations. There was also a call for LAO to ensure that staff provide a safe space for LGBTQ2S clients, especially during the intake process.
LAO will explore opportunities to increase the visibility of—and support for—LGBTQ2S communities:
- The DVS will liaise with LAO’s other vulnerable client strategies to ensure that resources are being shared and that intersectionality is being considered in the development of new strategies and resources;
- The DVS will ensure that LAO’s internal domestic violence training is updated on an ongoing basis to incorporate feedback from different groups, with a particular focus on incorporating intersectional voices, such as two-spirit persons and trans women of colour;
- The language of intake questions will be updated with more inclusive language, and these updates will be supported by internal training;
- Domestic violence panel lawyers with specific knowledge of issues affecting LGBTQ2S survivors will be identified and this information will be made accessible to clients, regardless of whether or not the client has disclosed that they are queer;
- Support the development of local domestic violence resource lists that include LGBTQ2S organizations, with a focus on trans-inclusive shelters; and
- Foster relationships with local LGBTQ2S organizations to increase access to justice, especially through warm referrals.
4.1.3 People with mental health issues or disabilities
The nexus between domestic violence and mental health is significant. Persons with a disability are considerably more likely to be assaulted and abused than the general population. 23 These crimes are underreported and if someone is heavily reliant on their partner or family member to take care of their daily living needs, they may be afraid of the consequences of speaking out.
An abusive partner may have complete control of the health care of a partner who has been found incapable to make treatment decisions. In these situations, a spouse or partner may be appointed as a substitute decision maker by way of a guardianship appointment, as a power of attorney, or under the Health Care Consent Act. A victim of domestic violence is in a particularly vulnerable position as their abusive partner may have complete control of their psychiatric medication, their admission to a health care facility, and more. They would be completely reliant on their abuser to advocate for their health and personal care needs.
Financial abuse is also a concern, as people with severe mental health conditions often rely on their partner or family member to handle their finances. They may sign over control of their money to their partner through a Power of Attorney for Property, or a court may appoint their partner to be their Guardian of Property. As well, a person with a mental health condition could lose control of their finances if a doctor deems them incapable to manage them. In these scenarios, a victim of domestic violence would have a very difficult time accessing the resources that would enable them to be independent of an abusive partner/family member or to leave an abusive relationship.
Persons with mental health issues face stigma and prejudices when navigating the justice system. In cases where police are called to handle a domestic dispute, seemingly ‘erratic’ or ‘bizarre’ behaviour may lead to police charging the survivor as well as their abuser (‘double charging’). Such charges could affect a family court case, especially one that involves custody of and access to a child, as well as any child-protection proceeding. Further, an abusive partner may use a mental illness against their partner as leverage in a family court case involving children.
Providing testimony in court against an abusive partner or family member can also be difficult for someone with a mental health issue or disability. Trauma and Post-Traumatic Stress Disorder (PTSD) may also negatively impact a survivor’s ability to give testimony in a case involving an abusive partner/family member. Women with mental illness in particular may have a history of repeated traumatization, the impacts which are under-recognized by the courts and the judicial system.
Women with mental illness also have a higher likelihood than men to offend against offspring and partners as opposed to strangers. At the same time, women who come into conflict with the law typically have substantially higher rates of mental disorder and face greater disadvantage in relation to the social determinants of health (for example, education, unemployment, and poverty) than men. Compounding these challenges, the gender of the accused can play a role in the way institutions and professionals identify and assess needs, accommodations and options. These differences may indicate the gender-specific advocacy needs of clients.
To address the particular vulnerabilities of clients with disabilities or mental health issues, LAO intends to:
- expand mental health and domestic violence training programs for LAO staff and further explore how staff can better assist clients dealing with the intersectionality of mental health and domestic violence;
- support outreach initiatives, including those developed by community-based legal clinics, which are aimed at assisting persons with mental health issues who are also survivors of domestic violence to obtain access to justice. This includes initiatives such as the Sound Times project in Toronto and the Hamilton Outreach Project (HOP) led by the Hamilton Community Legal Clinic;
- continue to provide funding for legal representation at the Consent and Capacity Board. This gives vulnerable people an opportunity to contest findings of mental incapacity with respect to their healthcare and/or financial decision-making which, if successful, enables the person to establish independence with respect to their healthcare and finances; and
- continue funding legal representation for vulnerable people who are the subject of a guardianship application. This will help ensure that the interests of vulnerable people are protected where a partner/family member is applying in court to take control of their personal care and finances.
4.1.4 Clients living in remote or rural areas
Women living in remote or rural areas face specific challenges, particularly when finances and transportation are controlled by another person. An additional level of complexity is added if there are limited numbers of lawyers available in their geographic area and a conflict arises in a family matter. An individual may be left without legal representation if the other party is the first to retain counsel. Clients need the option to choose an appropriate lawyer outside of their direct geographical area, but a lawyer may be hesitant to take on a client if they are unsure whether LAO will reimburse their travel costs.
LAO will work towards providing more flexibility in authorizing travel costs for lawyers in rural areas to increase client access to the panel of lawyers. A client identifying as having been subjected to domestic violence will be included in LAO’s criteria for approval of travel authorizations.
4.1.5 Immigrant and refugee women
Immigrant and refugee women face additional barriers that make them more vulnerable to domestic violence. These include:
- isolation from their family and community. Without social networks, the victim may have no one to turn to.
- precarious immigration status, and the assumption that disclosing abuse will jeopardize their chance of becoming a landed immigrant or Canadian citizen.
- lack of interpretation services: if they are unable to communicate in English, they may rely on their abusive partner as an interpreter.
- financial dependency on their spouse or a poor economic situation (this may be true even for educated and highly qualified women).
- unfamiliarity with the Canadian legal system.
To ensure that the vulnerabilities of immigrant and refugee women are addressed, LAO will:
- ensure that LAO staff are appropriately trained in cultural awareness and cultural competency. This will be done by ensuring that these topics are addressed in all training provided through LAO’s vulnerable client strategies, including the Racialized Communities Strategy, the Aboriginal Justice Strategy and the Mental Health Strategy; and
- ensure that LAO staff are trained and provided with materials on how an individual’s status in Canada can impact whether and how they will disclose abuse, and the specific vulnerabilities and issues that this intersection can bring to someone who has been subjected to violence (for example isolation, unfamiliarity with Canadian legal system, absence of interpretation services).
4.1.6 Male clients
Male survivors of domestic violence face disadvantages as there are a lack of social supports available for men who have been subjected to abuse. Men may be reluctant to report domestic violence or to seek help for fear of not being believed. While domestic violence is a gendered issue, men do experience violence and when they do, they require legal and social supports.
LAO will work directly with communities supporting male survivors of domestic violence to ensure that LAO’s services and programs are available and accessible.
4.2 Expand financial eligibility
Individuals who have been subjected to domestic violence have multiple and intersecting legal and social needs that must be addressed in a responsive manner. These individuals would benefit from more coordinated and integrated services across the justice system. Legal problems such as domestic violence may be aggravated by, or lead to, other legal problems. 24 While this is a systemic issue, there is an opportunity for LAO to address this intersectionality within the provision of legal aid services.
Can LAO waive the financial eligibility test?
No, LAO’s financial eligibility tests are mandatory and are fixed by Ontario government regulation. LAO has a statutory mandate to promote access to justice throughout Ontario to low-income individuals. Certificate, clinic and duty counsel legal aid services in Ontario are provided subject to the requirement of financial eligibility
Family law cases involving domestic violence are inherently complex. Often the parties have a related and concurrent criminal law proceeding before the courts. LAO heard in consultations that it is important for a client to have representation in both matters to protect them from unknowingly prejudicing a criminal case at the expense of their family law proceedings. A criminal conviction can have damaging repercussions that may affect family law and child protection matters, immigration status, access to housing, and the ability to obtain employment. Even where a criminal charge does not result in a conviction, there may be other equally serious consequences for the individual as a result of the charge itself.
Immigration and refugee law issues and processes may also significantly impact other legal proceedings. Sponsorship obligations, concerns about change of status upon separation or fear of deportation may keep an individual from disclosing violence. For women and men who are seeking status or residency in Canada, there may be consequences directly related to their immigration or residency status, as well as additional consequences to their family and/or criminal law matters. The challenges they experience in accessing the justice system are often compounded by language barriers, isolation and receiving inaccurate information about the Canadian justice system.
The current financial eligibility tests LAO uses for those subject to domestic violence are different in family law than in other areas of law, creating inconsistencies in access for those who have intersecting legal needs. LAO proposes to address this inconsistency in a two-part process:
- 2018/19 For clients subject to violence who are eligible and already have a certificate for a family matter, LAO intends to provide certificate coverage for their intersecting immigration or refugee matter if they are not already financially eligible for this coverage.
- 2019/20 For clients subject to violence who are eligible and already have a certificate for a family or immigration or refugee matter, LAO intends to provide certificate coverage for their intersecting criminal matter if they are not already financially eligible for this coverage.
As a first step, to ensure that these eligibility expansions are feasible and successful, LAO will begin tracking the presence of domestic violence across all areas of law.
What can’t LAO implement these changes immedately?
Due to unprecedented demand resulting from increased eligibility initiatives implemented to date, LAO is not in a position to implement these changes until it addresses its existing financial pressures. By addressing existing pressures today, LAO can ensure that it does not compromise its ability to help low-income Ontarians tomorrow. As noted in the recent independent review report authored by Deloitte, it is important that a cautious approach to service expansion is taken. This will allow for flexibility and for LAO to respond to unpredictable uptake in services and changing financial pressures.
4.3 Be transparent with process and policies
A simple way for LAO to reduce barriers for clients is to ensure that its communications about available services, eligibility requirements and accessing legal aid are clear. This is especially important for those who have an income or own property. In those circumstances a client may become eligible if they sign a contribution agreement or to have a lien placed on their property.
To improve transparency at an organizational level, LAO will work to:
- streamline the process and policy used for domestic violence clients regarding deferred liens and contribution agreements;
- be transparent in these policies and communications to inform community partners and agencies about the availability of these options and how to access them, including the existence of any discretionary factors that may be considered; and
- in areas where discretion is taken into account, be transparent and public about the process.
In special circumstances, LAO will continue to exercise discretion and flexibility when applying a financial eligibility test.
4.4 Increase legal support in criminal law
Individuals subject to violence often come into contact with the criminal legal system as a result of their abuse. The importance of early intervention services and the provision of services to eligible vulnerable accused with no prior conviction or to eligible accused who may be facing significant “secondary consequences” cannot be overstated. The majority of imprisoned women in North America have been subject to domestic violence, whether in their intimate relationships with men or in relation to childhood abuse. These women also often live in poverty. These combined factors place women in situations where there is a risk of criminalization. 25 The charge may not relate to an assault but may be a charge related to mischief or public disturbance. Most criminalized women in Canada are inside provincial jails as a result of being pushed to support themselves in ways that fall outside the law. They are being sentenced for non-violent offences such as theft, impaired driving, fraud, shoplifting and offences related to sex-work. 26 It has also been found that 80 per cent of federally sentenced women reported experiencing prior abuse. 27
Through its research and consultation processes, LAO identified a gap in criminal law services for women that the expanded legal eligibility (ELE) program that was introduced in 2015 had begun to address. Traditionally, women account for only approximately 20 per cent of criminal law certificate services at LAO yet 44 per cent of ELE criminal certificates were issued to women. In the year following the implementation of ELE the following changes were identified:
- The ELE program showed a 63 per cent increase in women accessing minor criminal law certificates
- ELE led to a total increase of 40 per cent of women issued criminal certificates over the previous year.
While this program has been temporarily scaled back due to an overwhelming response that surpassed available funds, LAO looks forward to reinstating this program in the future as soon as it is financially viable to do so. LAO will continue to work with agencies to determine other potential avenues for expanding access in criminal law.
4.5 Expand the Family Violence 2 Hour Authorization Program
LAO’s province-wide Advice Lawyer-Family Violence 2 Hour Authorization Program has been extremely successful. Through partnerships with social agencies, clinics and other third-party organizations, LAO provides up to two hours of free legal advice from a lawyer to clients who have been subjected to domestic violence and require immediate assistance in relation to family law and/or immigration and refugee law matters.
This program has been in use for over 15 years and enables early assistance to be provided to clients seeking legal advice. This program has helped minimize self-representation by providing earlier resolution.
As part of the province’s sexual violence action plan, the Ministry of the Attorney General has introduced an independent legal advice program for victims of sexualassault in the criminal law system. However, services are still needed for domestic violence victims in the criminal law system. These clients require advice on reporting domestic assault to the police, making statements to the police, learning the details of the criminal court process, and understanding how to prepare for a court appearance or trial. They also need legal advice in cases where their private records are being sought by the defence.
To address these needs, LAO plans to:
- expand access to the two hour program to complainants in criminal domestic abuse cases, to ensure that survivors of domestic violence have access to independent legal advice in criminal law matters;
- allow individuals to receive up to four hours of legal advice (two authorizations) per legal issue; and
- enable duty counsel and criminal and family court houses to provide the authorizations. Authorizations will also continue to be provided by shelters and community clinics.
LAO is also making improvements to enhance the program’s technology to make distribution of the authorizations and reporting requirements easier for partner agencies. LAO is also improving the billing procedures for domestic violence panel lawyers. LAO will carefully evaluate these changes and will continue to look for ways to expand this program to ensure that clients have access to early and proactive independent legal advice when necessary. LAO will ensure that lawyers working on the domestic violence panel are educated about the program, and that they understand the proper processes for advising clients and providing the two hours allotted to them within the authorization program.
4.6 Improve victims’ rights through representation of both parties
Because the opposing party/alleged abuser is often tested at a lower financial threshold when applying for a LAO certificate, they may not qualify for a legal aid certificate on financial grounds. In consequence, they often appear in family court as a self-represented or unrepresented litigant, which often increases the conflict between the parties. To further support clients subject to abuse, in cases where domestic violence is alleged LAO seeks to expand financial eligibility to opposing parties/alleged abusers to help ensure that both parties to a highly contested family law matter have representation. If a client receives a certificate under the domestic violence threshold, the opposing party, if also applying for a legal aid certificate, will be tested at the same (higher) financial threshold. This will help to provide a counsel-managed process and resolution.
LAO will explore opportunities to develop a one-year pilot project that provides certificates to the opposing party/alleged abusers at the higher financial threshold. LAO will be monitor and assess the pilot to determine the impact on clients who have been subjected to violence, as well as to identify potential training needs for lawyers who will be accepting these certificates.
5. Improving legal capacity
LAO believes that the most important service that it can provide is a really good lawyer, and consultation participants strongly agreed. It is especially important for an individual who has been subjected to domestic violence to have legal representation to address challenges that exist due to power imbalances between the parties. In family law matters, abusive spouses or ex-spouses may use litigation as a bullying tactic to continue a dynamic of power and control, negatively impacting all parties including any children. Having legal representation also increases the likelihood of obtaining a restraining order; 28 these orders play a vital role in helping survivors to rebuild their lives and escape the cycle of violence, and are often critical to helping survivors leave their abusers.
Consultation participants discussed the difficulty in finding a legal aid lawyer, especially one who has experience in representing domestic violence survivors. It is imperative that a lawyer working with a survivor is educated about domestic violence, and understands the tactics of the abuser and the power dynamics and control involved. Lawyers must recognize both the social and legal impacts of domestic violence on a client, and must understand the complexities of clients’ legal needs as they intersect with emotional, social and financial needs.
Developing a strong and trusting relationship with a lawyer is of utmost importance to someone who is subjected to violence. When disclosing or discussing abuse, it is essential that clients be fully heard and believed. Clients and survivors indicated that if they feel their voice is not being heard, it hurts their relationship with the lawyer and inhibits their ability to meaningfully participate in the legal process. A client should never be discouraged from disclosing his or her experience of domestic violence in family court/proceedings. Every client has the right to instruct and direct his or her lawyer. A lawyer should never dismiss a client’s experience of domestic violence as not having legal relevance, or advise a client that the court will not consider his or her experience of domestic violence.
LAO commits to providing access to lawyers who are educated about domestic violence and about working with those who have been subject to abuse.
5.1 Ensure independent and effective representation
Lawyers who accept certificates to represent legal aid clients must belong to the legal aid panel(s) for the area(s) of law in which they practice. LAO establishes panel standards, 29 such as minimum legal experience or continuing professional development requirements, which a lawyer must meet in order to be a member of that panel.
LAO will re-evaluate its requirements for lawyers to join the domestic violence panel and develop best practices for lawyers working with clients who have been subjected to domestic abuse. To effectively serve clients, LAO staff, per diem duty counsel, and domestic violence panel lawyers on require on-going and sustainable domestic violence training which should include (but is not limited to):
- the impact of domestic violence on survivors, families and children;
- various types of domestic abuse;
- intersecting legal needs in the context of domestic violence;
- cultural competency;
- risk factors;
- safety planning; and
- parental alienation.
Lawyers should also be trained on the impacts of domestic violence when working with the opposing party/ alleged abuser, both in family and criminal law.
LAO has made domestic violence training mandatory for all staff as well as for domestic violence panel lawyers, ensuring that all LAO employees have a base-line level of knowledge and awareness of domestic violence. LAO will ensure this training is sustainable and the skills and expertise provided through the training become best practices and core competencies by:
- formally evaluating and enhancing its current family law panel and domestic violence panel standards;
- developing a list of best practices for domestic violence panel lawyers.
- making training on domestic violence a mandatory standard for all family law panel lawyers;
- making domestic violence awareness, cultural competency and anti-racism core competencies for all legal aid decision-makers, including all lawyers and front-line staff. This will be done by sustaining the current training as well as by including domestic violence awareness as a component in the other LAO vulnerable client strategy trainings created by the Aboriginal Justice Strategy, the Mental Health Strategy and the Racialized Communities Strategy;
- cultivating domestic violence specialists in the areas of family, criminal and immigration and refugee law to provide assistance through LAO’s call centre, duty counsel program and private bar legal aid services; and
- partnering with community agencies who have expertise to provide specialized training on working with specific client groups (such as LGBTQ2S, Indigenous women and men who experience violence).
5.2 Give clients more time with their lawyers
Survivors need more time with legal and social service providers to discuss their family law matters, to increase accessibility and allow for the building of trust. Additional tariff hours may also be required at various stages throughout the family law process. More hours may be required to bring a motion, such as for interim custody (e.g. where the alleged abuser refuses to consent to a custody order), or contempt (e.g. where the alleged abuser has continually breached an access order), and to prepare a domestic violence survivor for trial.
Domestic violence survivors often require more time with their lawyers and billing should be reflective of this reality. Currently, LAO’s Aboriginal Justice and Mental Health Strategies provide for tariff enhancements in criminal law, but there is no enhancement for clients who are subject to domestic violence who access family law services. In such cases, providing more tariff hours on a certificate could better facilitate a lawyer’s ability to conduct a proactive holistic assessment of their client’s legal and social needs. To address these concerns LAO would like to:
- explore options to expand legal coverage so that advocates can fully respond to a client’s legal needs; this might be achieved by introducing a three-hour enhancement for family law certificates if the client has identified as experiencing domestic violence; and
- explore options for flexible discretion including conducting an analysis of the current domestic family tariff, in consideration of how it impacts a lawyer’s representation of a domestic violence client.
5.3 Help clients to find a lawyer
Through its training initiatives, LAO will ensure that domestic violence panel lawyers have the appropriate skills to work with clients who are subjected to violence. LAO also needs better processes for connecting clients with these lawyers. Legal aid clients and survivors indicated in consultations that they wanted information about each lawyer on the panel, including their overall expertise and experience in the area of domestic violence. Legal aid clients and survivors also expressed their frustration with difficulties in finding a lawyer willing to accept their legal aid certificate. Often a client must make numerous calls before finding a lawyer who is available to represent them, leading to a client settling for the first lawyer they reach who is able to take them on as a client.
To make this process more efficient, LAO will ensure that the domestic violence panel list is kept up-to-date and is shared with partner agencies. LAO also currently offers an online search tool called “Find a Lawyer” 30 which enables clients to search for available lawyers according to specific criteria including area of law, location and lawyers who provide services in a language other than English. To enhance this tool, LAO intends to make the following technology updates:
- enable lawyers to indicate online whether they are currently accepting certificates; and
- update its search tool to indicate if the lawyer has experience working with domestic violence clients and any other areas of expertise (e.g. areas of law, working with the trans community, other spoken languages).
5.4 Help clients to change their lawyer
After a client has selected a lawyer to represent them, LAO has a change of solicitor (COS) policy in place for those who require a change in legal representation. This change may be at the request of the client or for reasons beyond their control (e.g., their lawyer is retiring/ moving out of province).
In consideration of the trust that domestic violence survivors need to develop with their lawyers, LAO recognizes that flexibility in choice of counsel and, more specifically, change of counsel, may be required in circumstances such as: when a negative relationship has formed between the client and lawyer; when the client feels re-victimized by their lawyer; or where the lawyer has negated the client’s identification or experience of domestic violence. Standards for approving COS applications should explicitly include a client’s experience of domestic violence as a consideration.
Consultation participants indicated that LAO’s current COS policy is too onerous for domestic violence clients, both in its application and accessibility. The COS process requires a large investment of time and resources to complete an application and often results in clients being refused a change of lawyer.
LAO heard that transparency of the COS process is needed. The policy should be made available to clients, advocates and community partners. LAO should provide clarity and explanation as to what is sufficient or required to meet the COS request threshold, (e.g., in the application for a change of solicitor, what is required to demonstrate a breakdown of communication between the client and lawyer and what is required to demonstrate a breakdown in the client/solicitor relationship).
To streamline COS applications and make the process more efficient, LAO plans to:
- revise LAO’s COS policy to make it more flexible and reflective of a client’s experience of domestic violence and their relationship with their lawyer.
- Include the presence of domestic violence as a criteria for consideration in a COS application.
- make the COS policy transparent, so clients are aware of how it works. Information regarding the process and procedure to make a COS request will be made accessible through the LAO website, including any discretionary factors which may be considered.
- ensure that an investigation takes place where there are requests from multiple clients to change from a specific lawyer
5.5 Create a client-friendly complaint process
The LAO Complaints Policy states that: “Any person, including an individual who prefers to remain anonymous, can make a complaint, orally or in writing.” 31 This includes current and former clients. LAO considers all complaints, although it does not have the authority to handle certain complaints alone (e.g. Human Rights issues). Complainants are advised if their concerns do not fall under LAO’s jurisdiction. 32
Clients subject to domestic violence may feel dissatisfied with their legal aid certificate lawyer, yet may be reluctant to launch a formal complaint for reasons such as: the amount of time and effort involved; being unsure about the process; wanting to remain anonymous; or believing that they will not be granted a change of solicitor request. A client may feel too intimidated to voice a complaint about their lawyer if they know that they will continue to be represented by this lawyer. Lastly, a client may feel that if they make a complaint to the applicable LAO district office, their complaint will not be adequately addressed or that it will be treated less seriously than a formal complaint.
To ensure that the complaints process is accessible and clear, LAO plans to:
- make its complaints process more accessible and transparent by communicating it publicly using clear and plain language; and
- conduct a full review and analysis of the current complaints process and revise the process as necessary to make it more accessible to clients.
6. Supporting collaborative change
As a justice system partner, LAO can support collaborative change to benefit clients who are subjected to violence. In addition to legal services, many domestic violence clients also require access to non-legal services such as shelters, rape crisis centres, community-based supports, criminal justice supports and services, counsellors and therapists, and/or culturally and linguistically appropriate services.
LAO recognizes that having consistent legal aid policies and services for domestic violence clients can further enhance the efforts of community agencies and stakeholders. At the same time, in some communities, such as rural and remote areas and on reserve, certain services must be specifically tailored to meet local needs more effectively.
Domestic violence clients seek assistance from LAO from different access points and at different stages of their legal issue. Some clients are referred to LAO after having accessed services from a community partner. For other clients, contacting LAO is the first step that they have taken in seeking external assistance. Greater cooperation and collaboration between LAO and the domestic violence community will help survivors to access the supports they require in a timely way, with minimum referrals, regardless of their entry point. It is LAO’s goal to provide better outreach to domestic violence clients and survivors, and to continue to develop effective partnerships with community organizations and stakeholders.
Community partners and clients require up-to-date information on LAO services and policies. Many participants in LAO’s consultation process were eager to contribute their feedback. A number of them indicated that they did not feel they had the ability to connect or work with LAO on a regular basis. Some community partners advised they did not feel they were kept informed on service changes, current policies and service delivery practices, and were interested in increasing this knowledge as well as understanding the client’s path when accessing LAO services.
Correspondingly, in order to make appropriate referrals, LAO’s CLSC, Family Law Information Centres (FLICs) and other front-line staff require current information about available services, such as social services and community resources. Improving reciprocal communication will help LAO achieve the following long-term goals:
- Conducting early and proactive holistic assessment of client needs to help identify client issues that are often multi-layered and interdependent;
- Minimizing, where possible, the number of legal referrals for domestic violence clients;
- Providing guided transitions between LAO services and practice areas, and to increase the availability of case coordination; and
- Improving efficiency of access points by developing consistent links between courts, community resources, legal clinics and social services.
6.1 Create province-wide LAO domestic violence specialists
Following the lead of the Aboriginal Justice Strategy and the Mental Health Strategy, LAO will create a province-wide working group of domestic violence specialists across all areas of law. This group will support the domestic violence strategy and the development and implementation of initiatives impacting clients who are subject to domestic violence by:
- providing a forum to discuss new and ongoing initiatives and developments as well as to report on systemic barriers and legal issues encountered;
- advising LAO on operational needs;
- providing a local contact in each district for community partners and agencies to access and maintain an open and on-going conversation with the local LAO office;
- providing feedback to LAO from local communities on policy and procedure development;
- monitoring and ensuring the success and accountability of the services;
- building a formal mechanism for facilitating on-going participation of survivors and supporting agencies; and
- identifying opportunities to participate in provincial and local justice reform initiatives and to coordinate relevant test cases.
The working group will ensure that the Strategy is embedded within the organization and that programs and initiatives are rolled out in a manner that is responsive to local needs. It will support and cultivate a communication network between LAO and community partners who are capable of supporting key projects and programs within the Strategy.
Although LAO is unable to address all of the intersecting legal and social needs of a survivor, LAO will continue to work with community partners and stakeholders to help improve the welfare of and safety of survivors.
6.2 Increase availability and delivery of public legal information/education
Clients and partner agencies have indicated to LAO that there is currently insufficient information available on LAO services and policies, as well as on the client’s path through the family court system. This has an impact on how beneficial LAO’s services can be to clients. Understanding how the legal system works, the rights of a client and responsibilities of a lawyer, and how to prepare for a meeting with a lawyer may be as important to an individual as receiving the certificate itself. Without this knowledge, a client may feel a lack of empowerment or control, or may make decisions that are not well-informed.
To address these concerns, LAO intends to:
- hold in-person informational sessions, seminars and workshops with community partners as well as directly with survivors (including at shelters), on LAO’s services, a client’s path through the family law system, and when a referral should be made to LAO;
- provide trusted intermediaries with guidelines for LAO’s intake process. This will ensure that third parties can assist clients to gather required information prior to applying for a certificate, to shorten and ease the application process; and
- work with community partners to create brochures and pamphlets, to be provided to all clients on authorization of a certificate and available in multiple languages, that: 33
- inform individuals who are subjected to domestic violence about services and navigating the family court process.
- explain how to choose a lawyer and how to change a lawyer.
- outline client rights and lawyer responsibilities.
As a first step, LAO’s Racialized Communities Strategy has undertaken a project in the last year to have five informational sheets translated into 13 different languages. The topics include Children’s Aid, custody and access issues, finding the right legal aid lawyer, how LAO can help, and notice to accused persons. These were made available in the spring of 2017. 34
6.3 CLSC
LAO needs to be able to ensure that clients are getting the legal assistance that they require in an efficient and effective way. For domestic violence clients, this means first identifying legal and social needs by asking relevant questions and listening to the client’s narrative, as well as effectively triaging or referring clients to appropriate and available legal and social services and supports.
In the past year, LAO has made many improvements to screening and triage processes at the CLSC and is currently undertaking a consultation process that will consider additional improvements such as:
- continuing to improve wait times;
- working with specific communities (e.g. male survivors), to ensure that screening questions are appropriate and beneficial;
- training clinics on LAO’s summary legal advice services for improved referrals; and
- new ways to prioritize domestic violence clients who are calling in.
6.4 Better track the client path
To effectively address systemic issues, LAO requires an understanding of what services are being used by clients who have been subjected to violence, where there are gaps in services and what areas may require targeted programs. Tracking the client path through LAO will also allow the organization to determine cultural shifts through data analysis. LAO plans to:
- track the presence of domestic violence in all areas of LAO service delivery to appropriately identify intersecting legal needs and assist with future service delivery planning. This will improve advocacy through better awareness of the client’s path through the civil and criminal justice systems;
- improve advocacy through better awareness of the client’s path through the civil and criminal justice systems on a local level; and
- implement domestic violence identification/screening in the areas of immigration/refugee and criminal law to ensure that LAO can target appropriate services in all areas of law.
6.5 Measuring success
An important aspect of this Strategy is not just to create a long-term plan for improving services for clients who are subject to domestic abuse, but also to hold LAO accountable to these commitments. To ensure that this happens, as well as to encourage communication between LAO and community partners and agencies, LAO will post semi-annual updates of its progress on the Domestic Violence Strategy webpage.
LAO has also committed to a permanent policy counsel role to lead the implementation of the Domestic Violence Strategy. To find out how your agency can better work with LAO to serve clients who are subject to domestic violence or to schedule a public legal education session in your area please contact:
- Michelle Squires, Policy Counsel
Domestic Violence Strategy
Policy & Strategic Research
Legal Aid Ontario
40 Dundas Street West, Suite 200
Toronto, ON M5G 2H1
Email: squirem@lao.on.ca - Marcus Pratt, Director General
Policy & Strategic Research
Legal Aid Ontario
40 Dundas Street West, Suite 200
Toronto, ON M5G 2H1
Email: prattm@lao.on.ca
Appendix
A. Questions about LAO operations
Can LAO waive the financial eligibility test?
No, LAO’s financial eligibility tests are mandatory and are fixed by Ontario government regulation. LAO has a statutory mandate to promote access to justice throughout Ontario to low-income individuals. Certificate, clinic and duty counsel legal aid services in Ontario are provided subject to the requirement of financial eligibility
What can’t LAO implement these changes immediately?
Due to unprecedented demand resulting from increased eligibility initiatives implemented to date, LAO is not in a position to implement these changes until it addresses its existing financial pressures. By addressing existing pressures today, LAO can ensure that it does not compromise its ability to help low-income Ontarians tomorrow. As noted in the recent independent review report authored by Deloitte, it is important that a cautious approach to service expansion is taken. This will allow for flexibility and for LAO to respond to unpredictable uptake in services and changing financial pressures.
Why did LAO scale back implementation of new criminal law services?
In 2014, the Ministry of the Attorney General provided LAO with new funding to increase the income thresholds for financial eligibility and to provide new types of services not previously available to clients. The implementation of expanded financial eligibility and new types of services, however, resulted in unprecedented demand. Despite best efforts to predict client demand for expanded services, LAO’s forecasts were well below actual demand and LAO provided more services to clients than the funding allowed for. LAO was required to take steps to bring client services in line with funding. LAO has retained discretion to issue criminal law certificates to those not facing jail time in certain circumstances to protect the rights and safety of the most vulnerable accused who are fleeing an abusive relationship.
Footnotes
Footnotes for 1. A Domestic Violence Strategy for increased access, improved legal capacity, and collaborative change
- Statistics Canada, “Family Violence in Canada: A statistical profile, 2013”, Juristat (Ottawa: StatCan, 15 January 2015) at 6, online: http://www.statcan.gc.ca/. [“Family Violence”]. The analysis of family violence in the present study is based on definitions that correspond to those found in the Criminal Code. For example, assault, criminal harassment, sexual offences or homicide.
Back to report - Chief Public Health Officer, A Focus on Family Violence in Canada, (Ottawa: Minister of Public Health, October 2016), online: http://healthycanadians.gc.ca/> at 3, 7. [Family Violence in Canada].
Back to report - Ting Zhang et al, “An Estimation of the Economic Impact of Spousal Violence in Canada, 2009” Department of Justice (2012) at xiii, online: www.justice.gc.ca/.
Back to report - Centers for Disease Control & Prevention, National Center for Injury Prevention & Control, “Intimate Partner Violence in the United States – 2010” (February 2014) at 2, online: www.cdc.gov
Back to report - This includes domestic family law certificates only (excluding CFSA) and accounts for approximately 62% of all family certificates.
Back to report
Footnotes for 4. Reducing barriers to access
- Family Violence, supra note 1.
Back to report - Egale, Points for Consideration for Improving the Development of a Domestic Violence Strategy (12 November 2015), online: https://egale.ca/ at 3.
Back to report - Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada, online: (2015) www.trc.ca at v [TRC].
Back to report - Ibid at 180.
Back to report - Katie Scrim, Victims of Crime Research Digest No 3, online: Department of Justice www.justice.gc.ca.
Back to report - Shannon Brennan, “Violent victimization of Aboriginal women in the Canadian provinces, 2009”, Juristat, (Ottawa: StatCan 17 May 2011) at 5, online: www.statcan.gc.ca. This figure does not include Aboriginal and non-Aboriginal women living in any of the three Canadian Territories, namely, the Northwest Territories, Yukon and Nunavut.
Back to report - Holly Johnson, “Measuring Violence Against Women: Statistical Trends 2006”, (Ottawa: StatCan, October 2006) at 67, online: www.statcan.gc.ca. [Johnson, “Measuring 2006”].
Back to report - Supra note 12.
Back to report - Amnesty International, Violence Against Indigenous Women and Girls in Canada (February 2014), online: www.amnesty.ca.
Back to report - David Zimmer, The Journey Together: Ontario’s Commitment to Reconciliation with Indigenous Peoples (May 2016), online: Ministry of Aboriginal Affairs https://files.ontario.ca
Back to report - Ontario, News Release, “Ontario Acting to End Violence Against Indigenous Women” (23 February 2016), online: https://news.ontario.ca.
Back to report - Tracy MacCharles and David Zimmer, Strategy Paper, “Walking Together: Ontario’s Long-Term Strategy to End Violence Against Indigenous Women” (23 February 2016), online: https://files.ontario.ca.
Back to report - Ontario Women’s Justice Network, Queer and Trans* Survivors of Sexual Violence: Barriers to Accessing Justice (September 2015), online: http://owjn.org.
Back to report - Ibid at 6
Back to report - Founded in 1995, Egale Canada Human Rights Trust is Canada’s only national charity promoting lesbian, gay, bisexual, and trans (LGBT) human rights through research, education and community engagement.
Back to report - Egale, Points for Consideration for Improving the Development of a Domestic Violence Strategy (12 November 2015), online: https://egale.ca at 2.
Back to report - Ibid.
Back to report - Samuel Perreault, “Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity Limitations or Other Health Problems” (Ottawa: StatCan, May 2009), online: http://www.statcan.gc.ca>
Back to report - “Access to Civil and Family Justice: A Roadmap to Change”, Action Committee on Access to Justice in Civil and Family Matters, (Ottawa: October 2013) at 3, online: www.cfcj-fcjc.org
Back to report - Shoshanna Pollack, Locked in, Locked Out: Imprisoning Women in the Shrinking and Punitive Welfare State (2008), online: www.efryottawa.com
Back to report - http://owjn.org
Back to report - Canadian Human Right Commission, "Protecting Their Rights: A Systemic Review of Human Rights in Correctional Services for Federally Sentenced Women" (December 2003) at 7. Online: www.caefs.ca
Back to report
Footnotes for 5. Improving legal capacity
- Jane C Murphy, “Engaging With the State: The Growing Reliance on Lawyers and Judges To Protect Battered Women” (2003) 499 Journal of Gender, Social Policy and the Law 11 at 512, online: http://digitalcommons.wcl.american.edu
Back to report - See www.legalaid.on.ca for specific information on panel standards.
Back to report - See online: www.legalaid.on.ca
Back to report - Legal Aid Ontario Complaints Policy (December 2012) at 1, online: www.legalaid.on.ca.
Back to report - Ibid at 1-2
Back to report
Footnotes for 6. Supporting collaborative change
- Pamphlets and brochures will be available at no charge to community partners. It is also important to note that the majority of these documents must be translated into a variety of languages
Back to report - The translated brochures and factsheets can be found online at: www.legalaid.on.ca/RCS.
Back to report
