UPDATED June 2017: Legal Aid Ontario has recently begun providing independent legal advice (ILA) certificates to support eligible clients who are engaged in family court mediation.
When one of the clients is financially eligible, their former may also be eligible as long as their income is no more than $50,000. In other words, only one of the two parties has to meet the regular legal aid financial test as long as the other has an income under $50,000.
The independent legal advice certificates provide up to 6 hours of independent legal advice before, during and after a client enters into any legal agreement based on mediation. The lawyer can provide information and advice about the mediation process, assist the client to prepare for mediation sessions and provide information and advice to help the client understand their options. The lawyer can also assist the client to obtain a court order or a binding agreement so the mediation agreement can be enforced.
LAO has also recently begun covering the cost of up to 10 hours with a family law lawyer for a client to draw up a separation agreement. As with the ILA certificates for mediation, where one party qualifies financially, assistance may also be available for the other party as long as their income is no more than $50,000.
The lawyer can assist the parties by providing any of the following services:
- Obtaining and reviewing disclosure
- Preparing a sworn financial statement if support and/or property are at issue
- Discussing negotiation and/or settlement with the other party
- Participating in mediation or an LAO settlement conference
- Finalizing a separation agreement
- Converting a separation agreement into a court order
- Filing a separation agreement with the court
Many of us working with survivors of violence have concerns about the appropriateness of mediation in these cases, some of which extend to situations where the abuser wants to “negotiate” a separation agreement.
Women may not feel physically safe in a process that requires them to be in the same room as their abuser. Even where the mediator is able to offer shuttle mediation or other such arrangements that keep the parties in separate spaces, many abusers will threaten or even assault their partner when they are coming and going from the mediation session when the mediator is not able to offer any protections.
Of at least as much concern, is the issue of whether a woman can negotiate with her abuser with anything approaching equal bargaining power. Many women are dealing with serious trauma as a result of both past and ongoing abuse, and this will have a significant impact on their ability to engage effectively in any kind of collaborative process such as mediation or negotiating a separation agreement.
When the abuser uses legal bullying tactics, a woman may be unable to withstand his coercive and intimidating behaviours. The result may be that she concedes on important legal issues and “agrees” to an outcome that does not reflect her legal rights or the best interests of her children.
However, many women enter mediation either by choice or because they feel coerced or pressured into doing so. Because of this, the availability of LAO-funded independent legal advice through the mediation process as well as legal assistance with the preparation of a separation agreement offers important support to women who are or have experienced partner abuse.
With this initiative, women will have access to accurate legal information and the opportunity for input and advice from a lawyer before they commit to a final agreement. As a result, they may feel more empowered throughout the process.
Service providers have an important role to play in supporting women to make the best decision they can about whether or not to enter mediation or a separation agreement process. You want to be sure to:
- Provide information about what is involved in both processes
- Provide information about the LAO services described above
- Let women know there is no mandatory mediation in Ontario
- Discuss the pros and cons of both mediation and the separation agreement process
- Discuss safety planning
- Let women know what supports you can offer for whatever choices she makes
With this information and a service provider’s support, women can make informed choices about how to move ahead with their family law case.