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Legal aid services and estates law

Monday, May 10, 2021 @ 8:42 AM | By Kim Gale and Malvin Seto


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Kim Gale
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Malvin Seto
The Legal Aid Services Act (LASA) received royal assent in July 2020 as part of the Smarter and Stronger Justice Act. The LASA is a step forward to modernize the legal aid framework for low-income Ontarians through a shift from a regulatory regime to giving Legal Aid Ontario (LAO) more flexibility to develop and adapt its own rules, policies and services that better serve low-income Ontarians.

Why is the LASA relevant today?

The LASA gives LAO the power to set its own rules. On April 8, 2021, LAO released a statement indicating that it had created the rules to support the implementation of the LASA. A large part of its modernized approach asks for feedback from the private bar, clinics, other service providers and stakeholders. This feedback period is open from April 2, 2021, to May 20, 2021. You can provide your feedback for the LAO draft rules here.

LAO’s areas of practice

Charles Harnick, chair of LAO stated in a July 2020 press release: “Our core mandate continues to be to serve low‑income Ontarians. We will still provide poverty law and other services in criminal law, family law and refugee law to low‑income Ontarians. Nothing is changing in terms of who we serve and why we do what we do. Nothing ever will change that.”

The main areas of practice of LAO as listed on its website include criminal, family, refugee and immigration, domestic violence, mental health and legal clinics. There is nothing listed for the simple will or power of attorney, and estate administration, an area of law that is underserved and needed by individuals in Ontario.

Estates law should be considered an area of practice by LAO

As members of the estates bar, we see positives with having an estates law service for low-income residents. These include:

  • COVID-19 impact: there is an increased risk, and it follows that there is an increased need for drafting by low-income individuals who are forced to work as the paid sick leave structure introduced by the Ontario government only provides for three days of paid sick leave when the recommended quarantine period is 14 days;
  • As the population ages, there will be an increase for drafting services. We previously posted about the importance of a will;
  • The need for probate to access bank accounts of the deceased. Even though there are new rules that make it easier to apply for a certificate of appointment for small estates, knowledge of the probate process is still required to navigate the rules and minimize delays;
  • For the more modest estates, every dollar counts; and
  • Every person should have a chance at testamentary freedom and have their last wishes followed as closely as possible.

Proposed introduction of services

A proposed addition to LAO would be the introduction of estates law services. These would include:

  • drafting of wills;
  • drafting of powers of attorney;
  • having a mediator on staff; and
  • probate services for small estates.

The first two proposed services can be done in conjunction with student legal clinics. For example, the Queen’s Elder Law Clinic can be used as a guiding example for the drafting services under one supervising lawyer and provides a fantastic experience for 2L and 3L students looking to obtain experience and exposure to the legal profession. With virtual commissioning and witnessing here to stay, it can also be done by a staff lawyer from LAO.

Mediation can be a costly process for low-income parties. By having a staff lawyer who can also mediate or a mediator on staff, LAO can assist those parties in a dispute come to a resolution where previously they would not have been able to. This is especially important for the low-income clients where every dollar and costs savings count.

Guiding services such as a helpline, whether phone or website, for the newly introduced small estates probate rules may be helpful for those with some experience in the probate process. Additionally, having someone on the LAO staff who can assist with completing the forms may also be an option.

The LAO should seriously consider the implementation of estates law services. Having a small department solely focused on estates law can have big implications for access to justice.

Kim Gale is an estate litigation lawyer and principal of Gale Law, an estate litigation firm in Toronto. She can be reached at 416-868-3263 or kgale@galelaw.ca. She is the author and creator of the blog Law for Millennials — The Complete Beginners Guide to Law and is co-founder of diversity and inclusion group NCA Network. Malvin Seto is an associate estate litigation lawyer at Gale Law. He can be reached at (647) 793-6458 or mseto@galelaw.ca. Since graduating from Queen’s Law in 2019, he is currently pursuing his TEP designation.

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