Presentation to the Family Lawyers Association

Transcription

1 Presentation to the Family Lawyers Association Piyali M. Kundu, Lawyer Manager (SW Region) Janice N. Vincent, Lawyer Manager (N&CE Regions) Lawyer Services and Payments LEGAL AID ONTARIO

2 Basic CLRA and FLA Applications 12 hours for all family law issues (FLA02) 4 hours preparation for prep and attendance at first conference (FA012) DV matters are granted an additional 8 additional hours for restraining order issues (FA009) (4-hour double authorization) An LAO Settlement Conference may be required prior to granting trial authorization and can be arranged at any stage of the case (even where both parties are not legally-aided)

3 Additional Authorizations for Contested Issues: Custody and access 15 hours (FA003) Access only 7.5 hours (FA011) Support 9 hours (FA005) Property (including exclusive possession) 8 hours (FA007) Restraining Order 4 hours (FA009) Subsequent conferences (including LAOSC) 2 hours prep plus attendance time (FA021) Motions to Vary Support Only 7.5 hours (VAR03) Motions to Change Custody, Access and Support 12 hours (VAR02) In very complex cases, double authorizations may be granted for a single issue, i.e. custody, access

4 TRIAL AUTHORIZATION (FA023) consists of : 15 hours preparation up to and including the first day of trial; 4 hours preparation for each subsequent day of trial; Actual attendance time at trial; and 3 hours for matters subsequent to trial.

5 INITIAL authorizations: 19 hours for VSA, Supervision order or Society Wardship 22 hours for Crown Wardship Additional authorization may be requested for: 6 hours for Temporary Care & Custody hearing; 2 hours additional prep time for all subsequent conferences (plus actual attendance time); 8 hours for Summary Judgment Motion (plus actual attendance time); 6 hours for Status Reviews (12 hours, if Society has amended to from Society to Crown Wardship).

6 TRIAL AUTHORIZATION (FA045) consists of : 15 hours preparation prior to, and including the first day of trial; 4 hours preparation for each subsequent day of trial; actual attendance time at trial; and 3 hours for matters subsequent to trial.

7 As of November 26, 2012, LAO applies clarified discretion criteria to all accounts for which a discretionary increase is sought (all details can be found at: The onus is on counsel to establish exceptional circumstances in accordance with O. Reg. 107/99 and the clarified criteria Unless Lawyer Services and Payments ( LSP ) is persuaded that there are exceptional circumstances in the case that would warrant an increased fee, discretion will not be paid Counsel should obtain all available/applicable authorizations under the tariff prior to requesting discretionary increase

8 Exceptional Circumstances include: The results obtained The complexity of the matter Other relevant factors, such as disclosure issues, forensic/expert evidence, multiple parties, a well funded litigant, timeliness in resolution

9 Discretion Guidelines FAMILY (Support, Custody, Access) Results obtained Motion for interim spousal support: Award at high end of Spousal Support Guidelines Motion for interim child support: Retroactive to date of application or support ordered where other party stands in loco parentis Access, custody: Custodian successful in mobility application or change in de facto custody due to parental alienation Change in interim custody Contested no access order Complexity of Matter Client s special needs: e.g. mental health Self-employed payor, imputing income for child/spousal support issues Sexual or serious physical abuse allegations (criminal charges) Hague Convention matters

10 Discretion Guidelines CFSA Results obtained Protection Application: Child is not found to be in need of protection. No protection order made. Motion - temporary care and custody: Child is not found to be in need of protection. No temporary care and custody order made. Motion - summary judgment on protection application: Successfully defended and/or costs awarded Status review: lesser protection order made Complexity of Matter Child or parent special needs e.g. mental illness, addiction Sexual or serious physical abuse allegations (criminal charges) Aboriginal factors, band issues

11 Discretion Guidelines FAMILY and CFSA Other Relevant Factors Disclosure Forensic/expert evidence Multiple children/parents/parties Well funded litigant (the Society is not considered to be a well funded litigant for the purpose of granting discretion) Timeliness/reduction in appearances through mediated/negotiated settlement Factors that generally require existence of other discretion circumstances FAMILY and CFSA Lawyer s degree of skill and competence Parity between counsel Client out of jurisdiction

12 Discretionary increase requests: should be attached Online to the specific account for which an increase in payment above the tariff is being sought; a request should not be sent by mail or fax Should be made in writing using LAO s Discretion Request Form must include sufficient details outlining the exceptional circumstances of the case which justify a discretionary increase and should address the period of service of the specific account

13 The Disbursements Handbook is available for download at ements%20handbook.pdf

14 General Principles regarding Disbursement Authorization Legal Aid Ontario (LAO) authorizes lawyers acting on legal aid certificates to incur and bill the cost of actual disbursements that are reasonably necessary to support the legal services authorized by the certificate, keeping in mind the costs and expenses that a reasonable client of modest means would likely approve. LAO is not responsible for the cost of disbursements incurred where authorization is not obtained in advance. There is no provision in the Legal Aid Services Act or Regulations for retroactive disbursement authorization. Retroactive disbursement authorization may be granted in cases where authorization clearly would have been granted if sought in advance. Some disbursements may not require prior authorization if they are within specified preauthorized limits, e.g. parenting capacity assessments or pension valuations (legally aided client s own pension only) Where a disbursement will exceed the preauthorized limit, ensure that prior authorization is obtained.

15 The Legal Aid Services Act and Regulations prohibits a lawyer from seeking reimbursement from a client for fees or disbursements disallowed by LAO incurred in connection with a matter covered by a legal aid certificate. LAO is not bound by the provisions of court orders ordering payment of any kind, including payment of disbursements, unless LAO was represented in Court and was allowed to make submissions on the issue prior to the order being made. Counsel for a legally-aided client is responsible for disbursements incurred without authorization, or for which authorization has been denied. Counsel is responsible for all third-party service providers and the contract is between the lawyer and the service provider.

16 Some clients are required to enter into Contribution Agreements with LAO in order to receive certificate coverage Requests for discretionary payment of accounts in excess of the Tariff are still required notwithstanding that there is a lien against the client s real property Counsel have a positive obligation to advise if the cost of legal services will exceed the amount mentioned in the Contribution Agreement to permit LAO to determine whether an increase in the CA is required Property authorizations may not be granted in the absence of a properly executed Contribution agreement and/or registration of a lien (except in accordance with LAO DV protocol which permits for delayed registration in appropriate cases)

17 Pursuant to section 47 of the Legal Aid Services Act, LAO has a first charge against any interest in money or other property a legally aided client recovers or becomes entitled to as a result of legal aid services. This charge exists even in a case where the legal aid certificate was issued without the requirement of a contribution agreement.

18 In general terms, Legal Aid Ontario can register a lien against title to a property where the applicant has signed a contribution agreement. The authority to do so is found in section 48 of the Legal Aid Services Act: 48. (1) Where a person who owns or has any interest in any land in Ontario has agreed to contribute towards the costs of legal aid services given to him or her or to a person for whom he or she is the person responsible, the Corporation may register a notice of lien for an amount equal to the amount that he or she agreed to contribute against the person s land in the proper land registry office.

19 Costs awarded to a legally-aided client are the property of Legal Aid Ontario. LASA, s. 46(4) Where a legally-aided client is awarded costs and such costs are actually recovered, they are first applied towards the net cost of legal aid services rendered or what would be recoverable under section 47 of The Legal Aid Services Act.

20 Cost orders should specify that the costs are the property of Legal Aid Ontario, thereby clearly indicating that LAO is the creditor and not the client. In family law matters where support was an issue and costs are awarded, counsel should request of the judge that the costs order be apportioned between issues of support and all other issues. Cost orders that are apportioned to support will survive the bankruptcy of the judgment debtor. Costs awarded to legally aided clients in family law matters should not be enforced by or collected by FRO. The FRO does NOT collect cost awards on behalf of Legal Aid. The FRO does not recognize any assignment by the client to LAO. Counsel is required to take all reasonable steps to protect the interests of LAO in any award of costs or recovery by the client in accordance with the Legal Aid Services Act.

21 Counsel for a legally-aided client should obtain an executed Assignment of Judgment for Costs from the client for any costs orders made. FA025 is available and authorizes an additional three (3) hours of tariff for all preparation for and attendance on assessment of bill of costs/ obtaining assignment of costs and filing execution. LSP may request that counsel file the applicable documents to obtain a Writ of Seizure and Sale.