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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 10-31-2013, 03:00 PM
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Default Duty Counsel in a Case Conference?

My hubby just had his case conference with his ex. They managed to get everything sorted in a short period and an order was written.

Hubby says his ex had duty counsel go into the case conference with her. They were both self-rep.

Duty counsel told my hubby that he made too much money for Duty Counsel assistance (I guess the Legal Aid cutoff?)...but his ex actually makes marginally more than him.

Now, my hubby wasn't too upset by it as he felt duty counsel helped push the ex into a reasonable place thereby making the agreement possible.

I'm curious how she managed to do that? I have mine coming up next month and the ex is repped by a lawyer and I could certainly benefit from having my hand held with duty counsel as well!

Anyone heard this happening before?
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Old 10-31-2013, 05:54 PM
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The role of duty counsel is to help anyone who needs their help irrespective of what they earn or how wealthy they are. If you are represented, they will not give you legal assistance as its a conflict. Now as we all know that there is a shortage of duty counsel at all times, so if there is a shortage at the time you are in court, then you could be negotiating without duty counsel. Earnings have got nothing to do with help from duty counsel. They are not supposed to ask you how much you earn, unless they want to see if you qualify for legal aid, which has got nothing to do with their help at the case conference.
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Old 10-31-2013, 06:24 PM
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Quote:
Originally Posted by advice needed View Post
The role of duty counsel is to help anyone who needs their help irrespective of what they earn or how wealthy they are. If you are represented, they will not give you legal assistance as its a conflict. Now as we all know that there is a shortage of duty counsel at all times, so if there is a shortage at the time you are in court, then you could be negotiating without duty counsel. Earnings have got nothing to do with help from duty counsel. They are not supposed to ask you how much you earn, unless they want to see if you qualify for legal aid, which has got nothing to do with their help at the case conference.

He was told outright "You're middle class, middle income earner so I can't help you". Which had me puzzled because duty counsel has never asked me how much I make or anything of the sort. They didn't ask him how much he made, but he had the benefit of a financial statement in front of him.

The biggest surprise for me was that duty counsel went into the case conference to assist her ... or maybe the "process" .... however that duty counsel was speaking only with her, not my hubby at all.

We're both going through the process at the moment and there are glaring differences in how our cases have been handled by the clerks, etc.

He was able to submit an unsigned, unstamped financial statement (not his intention, but the clerk must have "missed it"). Meanwhile they wouldn't take my paperwork at all without a Ministry Document stating that the child support hasn't been assigned (which it never has been).

Neither him or his ex were made to attend MIS. I was, even though mine is a motion to change and his was a response to the very first motion. My ex was, even though he's legally represented as well.

Duty counsel didn't ask me how much money I made or anything like that, but they denied him on that basis.

It's confusing enough as it is, but to have such differences in the process is unbelievable.
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Old 10-31-2013, 06:33 PM
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It was probably the same duty counsel lawyer that sent me on a wild goose chase for a form that doesn't exist.
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Old 10-31-2013, 07:05 PM
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Are you mixing up with mediator and duty counsel. Mediators charge on a sliding scale, as per ones income. Duty counsel is free for anyone that is unrepresented.
With regards to filing of papers yes it has happened to me too, they accepted my financial without a notice of assessment, but then the court clerks are human and i would go crazy receiving all that paper, day in and day out, without slipping up once in a way.
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Old 10-31-2013, 07:20 PM
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Nope, definitely not confusing the two.

I understand that mistakes happen, I get that totally. Those clerks are inundated with paper every day so I can see how it would happen. But the procedural differences ie MIS, financial statements, etc. I initially tried to file my motion without a financial statement because the rules stated that unless you were asking for above guideline support, you didn't need to file them. So, I didn't. I was told that because I was wanting S7 and arrears, I had to. They wouldn't accept the paperwork without it.

She filed everything with incomplete financial statements, looking for both S7 and arrears. Duty counsel advised him at first appearance that she didn't have to and he didn't have to because nobody was looking for above guideline support or to claim hardship.

It's the duty counsel in case conference that has me particularly confused.

Didn't even realize it was a possibility and my hubby has no idea how the ex managed it. But, he was happy to have duty counsel there. She moved her along in a way that they got everything settled in a 20 min case conference and some discussion outside of it. Hubby also felt like the ex walked out with some more definitive guidelines going forward. Her financial claim had little merit anyway and they agreed upon some access terms, understanding that the child is almost 15 and has a bigger voice than mom thinks he does.

He walked away positive, heard and resolved. All you can ask for really.
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Old 11-01-2013, 09:29 AM
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Umm, I was told by FLIC I was not allowed to meet with duty counsel unless I qualify for legal aid. I'm pretty sure this is a new rule though.

That's in Ottawa.
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Old 11-01-2013, 09:58 AM
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Is that a new development? or did he just pull it out from his a__ Find out if that is a new rule. In toronto its free for anyone that is unrepresented
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Old 11-01-2013, 11:33 AM
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Quote:
Originally Posted by MS Mom View Post
I'm curious how she managed to do that?
1. Duety counsel failing to gather the necessary evidence on financial income from the client they are serving.

2. Client failing to disclose the information and/or lying.

Both #1 and #2 are very common when getting certificates. LOA doesn't report on the number of certificates removed and from whom for having too high an income. Ombudsman needs to enforce more accountability on LOA Investigations team and report publicly about those whom have obtained certificates through fraud.

I recommend anyone applying to any Legal Aid provided service to provide full and frank financial disclosure similar to those required under Rule 13 of the Family Law Rules. If you lie about your income it will be easily found because under Rule 13 "full and frank financial disclosure" is required.

Lies have short legs... eventually the area director will pull your certificate because you have RRSP you can draw on, an income equal too or higher than the Canadian house hold income, etc...

My recommendation to all litigants facing a LOA supported client is to file a complaint with LOA ethics to insure a proper investigation is made on the application. Certificates are often handed out improperly and on lies.

Also, to lie or fail to disclose your income and asset base may constitute fraud in accordance with the CCC and the LOA Act. Receiving government funds through fraud is a crime.

Good Luck!
Tayken
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Old 11-01-2013, 01:41 PM
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Quote:
Originally Posted by Tayken View Post
1. Duety counsel failing to gather the necessary evidence on financial income from the client they are serving.

2. Client failing to disclose the information and/or lying.

Both #1 and #2 are very common when getting certificates. LOA doesn't report on the number of certificates removed and from whom for having too high an income. Ombudsman needs to enforce more accountability on LOA Investigations team and report publicly about those whom have obtained certificates through fraud.

I recommend anyone applying to any Legal Aid provided service to provide full and frank financial disclosure similar to those required under Rule 13 of the Family Law Rules. If you lie about your income it will be easily found because under Rule 13 "full and frank financial disclosure" is required.

Lies have short legs... eventually the area director will pull your certificate because you have RRSP you can draw on, an income equal too or higher than the Canadian house hold income, etc...

My recommendation to all litigants facing a LOA supported client is to file a complaint with LOA ethics to insure a proper investigation is made on the application. Certificates are often handed out improperly and on lies.

Also, to lie or fail to disclose your income and asset base may constitute fraud in accordance with the CCC and the LOA Act. Receiving government funds through fraud is a crime.

Good Luck!
Tayken
Tayken - If I understand you correctly she received legal aid and thereby getting duty counsel to assist her in the courtroom during the case conference?

If this is what you're saying, then she definitely lied about income/family situation. The income is in the $50000/a range, two dependents. But, the part that she ommitted in her financial statement was her live-in partner's income, which is estimated at above $60000. She's been hiding behind the fact that she is in a same sex relationship for many years, yet claiming Child Tax Credits, etc as a single mom with two dependents. All that came to light in her disclosures of NOAs.

Her financial statement also shows the RRSPs, RESPs and savings account balances - which definitely far outweigh my husband's and mine. She shows no debt at all on her financial statement. They recently purchased a home together which we estimate in the $300000 range.

I'm up against a lawyer, am owed $10000 in arrears and have debt up to my wazoo and all duty counsel did for me was send me looking for a form that doesn't exist. The playing field really needs to be leveled.
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