Tuesday, May 15, 2012

Do I Qualify for Legal Aid? And What Are My Options if I Don't Qualify?

Photo credit: Philippines Legal Aid
Most Canadians have heard of legal aid. Most don't know what it covers, or who can benefit from it, unless they've been put in the position of really needing a lawyer but had difficulty affording one. Official "full service" legal aid where your own personal lawyer takes on your case from start to finish is unfortunately only available to Canadians with the lowest of low incomes who are facing very serious legal consequences. However, there are alternatives for the many Canadians who make too much to qualify for legal aid, or don't have a problem that is considered serious enough to merit a lawyer being assigned.

While legal aid rules vary slightly by province or territory in Canada, I don't believe the income cut-offs and services covered vary all that much from place to place. However, in this post it's the Ontario situation that I'll directly talk about. And regardless of what you read in this post, since the rules can be a bit technical you should always check with an official legal aid office before deciding you won't qualify. Most notably, some local community legal clinics devoted to subjects like landlord and tenant law, and some duty counsel offices located in court houses which provide summary legal advice on criminal or family matters (but not full representation for all aspects of a case) don't have the same stringent income cut-offs.

I've had clients making $50,000 per year quite reasonably ask me if they might qualify for legal aid, since paying thousands of dollar in legal costs would be difficult; the answer is no, even with a large family to support. I've had clients making minimum wage even more reasonably presume that they would qualify for legal aid, since paying 25% to 100% of their annual pre-tax income on legal fees is just not possible; again the answer is no, unless they have some dependents. Lastly, I've had clients who are in receipt of social assistance ask if they would qualify for legal aid after being charged with a relatively serious first criminal offence like an impaired driving charge; yet again the answer is no, however here the "no" is not because of their financial position, but because it is unlikely they'll be sentenced to jail.

As a single Ontario resident, you need to make less than $10,800 per year gross (before taxes or other deductions) to qualify. Working full time at a minimum wage job will earn you almost double that amount! Thus even many part-time jobs will out-earn the cut-off. Really, if you're single and aren't on social assistance or disability, it's unlikely you'll qualify. And even with dependents to support (a spouse and/or children), you can't be making much above minimum wage if you hope to qualify. On top of it all, most legal aid funds go to criminal cases, so if you have a family or other civil law case you may be out of luck - regardless of how little you make. There is some funding for family, civil and administrative cases - like where child custody or refugee status is in issue - but not much.

This post isn't about demanding increased legal aid funding (although I certainly think that would be a good idea), as even if funding was to double the vast majority of Canadians still wouldn't be covered. England and Wales have the world's best funded legal aid system at an unsustainable cost of two billion pounds per year, with assistance extending its reach into the lower middle class, but still only about 29% of residents qualify; coverage there could shrink dramatically as budget cuts sweep the public sector. Rather, this post is about facing realities of who is covered, what is covered, and what are your options if you aren't covered by legal aid in Canada.

So if you're not covered, what are you to do?

1. Consider Retaining a Lawyer if You Can Stay Out of Court, or Minimize Your Time in Court. 

As you probably know, most lawyers charge by the hour. The charges tend to be proportionate to how long it took them to become lawyers (for me it was nine years of post-secondary training), the geographic area they practice in, and to a lesser degree their area of specialization. In the professional fees spectrum, they charge less than doctors who usually spend longer than lawyers in school, but more than accountants or engineers who may have spent less time in school. In Canada we don't see our doctor bills, so lawyers tend to be perceived as the top billers, but really the medical professions earn (and deserve) more.

One hour of a lawyer's time could be the best few hundred dollars you'll ever spend, since the advice you obtain through that hour could completely put your mind to rest over all your legal worries. However, one thousand hours of a lawyer's time slogging away at an apocalyptic court case involving motions, trials, appeals and retrials is unaffordable for most of us, lawyers included! It's usually not the lawyer advice or document drafting that gets expensive, it's the going to court because of the way court sucks in the time of a lawyer, somewhat like the all-consuming nature of the event horizon of a black hole. But you might be able to limit total lawyer court time, depending on the litigation strategy you adopt.

Even if you are already in court representing yourself, consider retaining a lawyer to negotiate a settlement for you - be it a criminal plea or dropping of charges, or a civil agreement to pay some nominal damages or share child custody. Settle, and fees could be very affordable.

Yes, I know it seems unfair, and I'm definitely not saying you should agree to some kind of ridiculous settlement - it's your lawyer's job to avoid that and get you a good deal - but courts were not created as fora devoted to proving points, they are there so that the inhabitants of our society can achieve some modicum of justice they can live with - maybe not be happy with, but at least be kinda content with - and move on with their lives.

2. Seek Out Free or Law Cost Non-Legal Aid Representation. 

If you live in a city with a law school, the school might have a law student clinic - I used to run the McGill Legal Information Clinic - where students might be willing to represent you in court on minor matters (their ability to do so will depend on the local bar rules and mandate of the clinic), or at least point you in the right direction of how to proceed.

There are some pro bono lawyer organizations that can occasionally provide legal representation without charge, but do understand that many lawyers don't take pro bono cases, and even those who do might limit themselves to one pro bono case at a time, so finding pro bono representation can be extremely difficult unless you have some kind of particularly novel, newsworthy, and meritorious test case.

There are also sometimes community legal clinics which are funded by legal aid to provide specialized types of legal services to particular client groups (like the elderly, Aboriginals, the disabled, or those from particular cultural communities), but which apply more flexible financial means tests. Although you'll need to live in an area where one of these clinics exist - usually a big city.

3. Do-It-Yourself. 

DIY law may be easier said than done, but there are now lots of online resources to help you. There are two fundamental requirements to succeed here: (a) you must have a reasonable grasp of the language you are proceeding in (in Canada, English or French); (b) you must be wiling to use the Internet to get help. If you're reading this post online, you probably meet both the requirements.

In the old, dark days of legal research - circa the 1980's - you could spend days, even weeks, lost in the dusty stacks of a cavernous law library looking for the holy grail of legal knowledge that is applicable to your case, only to find once you locate the blank space on the shelf in which it used to be lodged that it had been sent out for rebinding, and might be returned in another 3 to 6 months - if you were lucky.

Now, everything is different. And trust me, I'm not stating the obvious here, it's really, really different.

The full searchable text of all laws are online ( for example, federal laws can be found at: http://laws-lois.justice.gc.ca/eng/ ) The full searchable text of all recent cases are online (www.canlii.ca). Law books (written mostly by academics, and occasionally by me) aren't online, but can be purchased online (sometimes at great cost, or occasionally - as in the case of my own books which I am shamelessly promoting, see the right hand side bar of this blog - at reasonable cost).

On top of all that, there are online community organizations devoted to explaining the law to the public. In Ontario, the most notable site is yourlegalrights.ca, which cover a lot of areas of the law in lots of detail, and sometimes in more languages than just English and French.

So to take the DIY example of conducting your own litigation, you will usually find all the court forms you need online on the court's web site, you can research the applicable legislation by doing keyword searches through the applicable law, and likewise pull relevant caselaw by searching through the over one million (!) cases on the Canadian Legal Information Institute's website.

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