Tribunal reinstates $230 monthly benefits that allow them to raise 15-year-old grandson

Marika and Barry Vandewater, both 75, of Oshawa, have cared for their grandson Danny, now 15, since he was 5.

An Oshawa grandmother says she is relieved and "absolutely thrilled" after a tribunal ruled the province must continue to provide the monthly benefits she has counted on to raise her grandson.

"It's a tremendous victory," Marika Vandewater said Thursday. She and her husband Barry, both 75, have cared for 15-year-old Danny for the past 10 years.

But like many seniors, they are living on a fixed income that was not designed to support children.

The couple, who raised three kids of their own, had counted on the province's Temporary Care Allowance to help cover the costs of caring for their grandson.

The benefits, provided to any grandparent or other family member who steps in to look after children when parents are ill or incapable, includes $230 a month and drug and dental coverage.

But in November 2008, Vandewater was suddenly told her benefits would be stopped because her caregiving arrangement was not considered temporary.

She appealed the decision and last month Ontario's Social Benefits Tribunal upheld it, calling the sudden cancellation "unfair" and reiterating the need for a "broad and liberal approach" when deciding who is eligible for the social assistance.

"This decision is a great result for the family and potentially all grandparents facing similar challenges," said Douglas Stewart, lawyer at Fraser Milner Casgrain in Toronto, who handled the case pro bono.

He said it sets down the framework for how future cases should be decided.

Grandparent advocates also hailed it as an important win and called on the province to reinstate benefits for any families who lost them for similar reasons.

They say many grandparents struggling to make ends meet have had the allowance cut off in the past four years as program administrators narrowed the interpretation of what arrangements qualified as "temporary."

But the tribunal has sent a signal that the province is "out of step with the law," Pro Bono Law Ontario said in a statement.

Decisions will continue to be made on a case-by-case basis, Madeleine Meilleur, Ontario's minister of community and social services, said Thursday.

Meilleur wouldn't comment on the specific case, but she said there has been no change in eligibility rules and that recent policy directives were aimed at ensuring they are applied and interpreted consistently.

"What we have done is clarify the policy," she said.

The ministry does not keep statistics specific to grandparents.

But Betty Cornelius, founder of the grandparent support group Cangrands, says she knows at least 20 families who lost benefits, affecting 30 to 40 children.

There are roughly 11,000 children in Ontario being raised by grandparents and other relatives who step in on a temporary basis in hopes the parents will one day be able to resume their responsibilities, says Esme Fuller-Thomson, University of Toronto professor of social work.

"One in three of those households are living in poverty," she said.

Many of the children have had traumatic early years and face health or behavioural problems that require medication or therapies.

The temporary care allowance makes a big difference to those who are most in need. For the Vandewaters, who have an annual household income of about $35,000 from pension and other benefits, the fear of losing that funding was daunting.

"I was just so devastated," said Marika Vandewater. "We are struggling. We would have lost our house. I'm so grateful that I got reinstated."

Vandewater said she hopes the decision will also help the other grandparents who have been unfairly cut off.

Conflict of interest rules, which were blamed for stifling pro bono services, will soon include an exemption for lawyers offering court-based brief services.

The Law Society of Upper Canada is amending its rules of professional conduct to facilitate Pro Bono Law Ontario’s legal outreach programs.
The law society’s current standards for conflicting interests are too rigid to allow for the kinds of limited retainers used by PBLO programs, Bencher Julian Porter said at Convocation late last month.

“So the system which is meant to help people that couldn’t get legal service otherwise, who were not eligible for legal aid, that were in trouble with the system, can’t be helped,” Porter said.
A simple relaxing of the rules, he added, would improve access to justice for a demographic with few choices for representation, he explained.

“It’s a way of making this important outreach capacity work,” Porter said.
Among PBLO’s advocacy projects is Law Help Ontario, which operates two legal clinics in Toronto, one for Superior Court matters and one for Small Claims Court.
Volunteer lawyers offer short-term legal advice to those whose income is greater than the threshold for qualifying for legal aid but who can’t afford to pay for representation themselves.

However, before a volunteer lawyer can offer help, the matter must first clear a conflicts check, a rule that unduly delays court-based services, Porter said.
The centres are typically staffed by students from large law firms in Toronto, he explained.
“By the time it is checked back at the office to see if there’s a conflict of interest, at least three hours has passed, sometimes more.”

Those regulations are preventing lawyers from participating in the program, according to PBLO. Pro bono counsel turn away a “considerable number of clients,” according to a law society report.
Under the new system, lawyers will be able to offer pro bono services unless they know of a specific conflict that exists.

“Of course, as soon as the person discovers there is a conflict, that’s the end of that and the law firm is always set up with agreement to have information sheltered from the other side,” Porter said.
Law societies in British Columbia and Alberta have made similar amendments in which a pro bono lawyer’s associates and partners in a firm may continue to act for clients with adverse interests to the short-term client.
Conflict of interest rules that cast a wide net are leading other bar organizations across Canada to reconsider their regulatory framework.

“It’s been a topic of importance going back now seven or eight years,” says Malcolm Mercer, general counsel at McCarthy Tétrault LLP. “Conflicts are such a practical day-to-day issue.”
Mercer was a member of the Canadian Bar Association’s task force on conflicts of interest, which made several recommendations last year for lawyers facing increasingly complex situations.

The CBA recently incorporated those recommendations into its code of conduct, making major revisions to its conflict of interest guidelines.
Among the most important changes is the very definition of what constitutes a true conflict, Mercer says.
For a conflict to exist, there must be a “substantial risk of material or adverse effect on representation of a client,” according to the CBA code. That compares with the “likely” prospect of an adverse effect, as defined in the LSUC’s rules of professional conduct.

The new language is consistent with that of the Supreme Court of Canada in R. v. Neil and Strother v. 3464920 Canada Inc., Mercer says.
The CBA also formalized the notion that there exists a relationship of trust between clients and lawyers, which can be breached by the mere presence of an adverse relationship even when no conflict exists.
“There may be times when just being adverse to the client may compromise the relationship,” Mercer says.

He cites the example of a lawyer fighting for compensation for an injured worker. A conflict of interest may exist if that same lawyer also acts on behalf of a bank in foreclosure proceedings on the worker’s home.
“You could easily imagine the injured worker simply couldn’t trust the lawyer,” he says.

But he adds that acting on a matter that is adverse to another client shouldn’t necessarily amount to a conflict if the matters are unrelated and no significant risk of a negative effect on representation exists.

Also underlying the CBA’s new conflict standards is the promotion of access to justice, Mercer says, noting that pro bono lawyers should be allowed to provide assistance on a limited retainer basis.
“If you had to go through that process, you’d spend more time clearing conflicts than offering help.”

Current rules can also put up significant barriers to representation in specific practice areas or in remote regions of the country where finding a lawyer free of any potential conflict as defined can be impractical or impossible, Mercer says.

“When there’s no real risk of prejudice, the CBA responds, ‘Why should it be prohibited?’” he notes.
Uniformity of codes of conduct across Canada is the ultimate goal, Mercer says, adding the hope is that law societies will adopt the CBA’s guidelines.

The Federation of Law Societies of Canada says it’s reviewing the task force’s recommendations and has withheld its own rules dealing with conflicts of interest from its recently released model code of professional conduct in the meantime.

Pro Bono Law Ontario's signature project for unrepresented litigants, Law Help Ontario, has won the 2010 Law Technology News Award for Most Innovative Use of Technology in a Pro Bono Project. The Award was presented last night at a gala reception held in New York City. This is the third award that PBLO has received for its ground breaking project in as many years.

Launched in December 2007, Law Help Ontario is Canada's first court-based pro bono project tailored to meet the needs of litigants who must represent themselves because they do not qualify for legal aid and cannot afford to hire a lawyer. Law Help Ontario provides a continuum of brief services to litigants (with civil matters) to help them better navigate the justice system. One of these is A2J, a web-based automated document assembly system that helps them create accurate, properly formatted court forms and pleadings. PBLO has developed court form templates for every level of Ontario's civil court system from Small Claims to the Court of Appeal, many of which are accessible online at www.lawhelpontario.org. Since launching, Law Help Ontario has helped litigants create over 10,000 court forms.

Litigants can access the software, along with legal advice and duty counsel representation free of charge by visiting PBLO's court-based centres at 47 Sheppard Ave. East and 393 University Ave. in Toronto. A third centre is scheduled to open in Ottawa in March 2010. "Law Help's combination of self-help resources, a vibrant pro bono program and innovative technology has been a boon to the 8500 clients we've served since launching," says Lynn Burns, PBLO's Executive Director. "Our goal is to make access to the civil justice system a reality for all Ontarians".

PBLO developed its A2J service in partnership with Pro Bono Net, as US based charity that uses partnerships and technological innovations to increase access to justice for the millions of poor people who face legal problems every year without help from a lawyer. LTN is an e-journal of American Lawyer Magazine that focuses on the intersection between technology and legal practice.

********************************************

BACKGROUNDER

Pro Bono Law Ontario (PBLO) is a charitable organization that promotes access to justice in Ontario by creating and promoting opportunities for lawyers to provide pro bono (free) legal services to persons of limited means. The Law Help Ontario office at 393 University Avenue in Toronto has been open since December 2007. The Ottawa Law Help centre will be modeled after the Toronto centre. The volunteer lawyers and Law Help staff provide a full range of brief legal services to assist unrepresented litigants and address the key challenges they face when they decide to go to court, such as:

Not understanding court rules and procedures

Not being able to properly complete court forms

Not understanding their legal rights and available remedies

Not being able to research or apply case law

Not being able to interpret or apply applicable legislation

The Law Help Centre is not designed to replace services of lawyers retained to provide full representation. Rather it operates as a walk-in centre for low-income, unrepresented litigants who are considering litigation, defending or bringing an action, or trying to enforce a court order for civil (non-family) matters. The Law Help Centre only assists clients that cannot afford to hire a lawyer and do not qualify for legal aid. Litigants can come back to the walk-in centre as many times as needed.
PBLO has also received the Ontario's Bar Association's President's Award (2008) and the American College of Trial Lawyers Emil Gumpert Award (2009)

For more information, please contact

For further information or to book an interview:
PBLO
Lynn Burns, Executive Director
(416) 977-4448 x 225
lynn@pblo.org
www.pblo.org

Pro Bono Law Ontario’s technology-enabled self-help center at Toronto’s Superior Court has received awards and accolades. But the truest measure of its value may be the fact that people are willing to drive eight hours across Ontario to take advantage of the free legal services offered there.

“It’s a classic example of, ‘If you build it, they will come,’” said Lynn Burns, Executive Director of PBLO.

The center, along with another at Toronto’s Small Claims Court (both called Law Help Ontario), had 7,645 visits in 2009, 74% more than in 2008. Law Help Ontario was recently named the winner of the 2010 LTN Award for Most Innovative Use of Technology in a Pro Bono Project. Last year, it won the American College of Trial Lawyers’ Emil Gumpert Award. A new Law Help Ontario center will open this spring in Ottawa, Ontario’s 2nd-largest city.
Yonit Fuhrmann and Lynn Burns

PBLO was the first organization to provide self-help resources for unrepresented litigants in Ontario, Canada’s most populous province. “We really try to provide a continuum of services, with a combination of staff, procedural information, online resources and volunteer lawyers,” Lynn explained.

Hundreds of attorneys from more than 50 law firms volunteer at the center, which has integrated LawHelp Interactive, Pro Bono Net’s online document assembly project, into the way it provides services. (See related article.) After being assessed by intake staff, clients meet with pro bono attorneys, who advise them on filling out needed forms. The client then uses LawHelp Interactive, on a terminal at the center, to fill out the form and brings it back to the pro bono attorney for review. A subset of automated forms is also available to the public on LawHelpOntario.org, the first LawHelp.org site to be developed outside the U.S.

The center’s use of LawHelp Interactive improves outcomes for the client while minimizing the amount of time pro bono attorneys spend on administrative work. Streamlining the process enables more people to receive help and provides a more satisfying pro bono experience for the attorneys.

PBLO’s achievements in increasing access to justice are all the more impressive since, unlike the U.S., Canada historically did not have an institutionalized pro bono culture. When PBLO was created in 2002, no law firm had a formal pro bono policy. Pro bono work was done purely on an ad hoc basis, if at all.

Lynn and her staff of six have achieved remarkable results since then. “There has been a total sea change” in law firm attitudes towards pro bono, said Yonit Fuhrmann, PBLO’s Deputy Director. “Most of the large firms now have a pro bono policy that counts pro bono time as billable time. It made things much easier for PBLO in terms of being to recruit volunteers for our self-help centers, which rely on two lawyers per day, five days a week.”

The self-help centers have helped encourage pro bono by making it easy for both firms and attorneys to get involved. “We could go to the firms and say, we need you to send 24 associates, and we’ll schedule them,” Lynn explained. “Once their lawyers started providing pro bono services at the centers they were getting experience that 1st, 2nd or 3rd year associates would probably not get for several years. The firms saw it as a win-win. The associates loved it, they’re getting experience and they’re serving the public good.”

Small and solo practioners are increasingly getting involved as well, Yonit said. “We really focus on ease and efficiency. Lawyers can come in and know they’ve got a limited commitment set up in advance, and they’re not leaving with a giant case file,” she explained.

PBLO has two other main programs, a child advocacy project and a project that provides business law services to charitable organizations. They also help law firms develop pro bono policies and find signature projects, since firms don’t have staff dedicated to pro bono. In addition, PBLO partners with pro bono organizations from other Canadian provinces to host a national pro bono conference every two years; the next one will be this year. A second province, Alberta, has also joined the Pro Bono Net network with its site, Pro Bono Law Alberta.

The newfound commitment to pro bono has allowed Ontario’s lawyers to respond in an organized way to the effects of the economic downturn, which, as in the U.S., has left vulnerable people struggling with job loss, mounting debt and other problems.

“In the nine years I’ve been here we’ve been all about organizing the opportunities for the firms,” Lynn said. “2009 was the first year that the demand [for services] is starting to exceed the supply.”

CHICAGO—January 21, 2010—New audio, video and graphic enhancements to A2J Author® software will make it easier for court personnel and legal aid lawyers to help the public gain access to the legal system. The Center for Access to Justice & Technology (CAJT) at Chicago-Kent College of Law, in partnership with the Center for Computer-Assisted Legal Instruction (CALI), today has released Access to Justice Author™ 3.0, an upgrade of the popular legal software used by those who assist low-income individuals who are not represented by attorneys in certain legal matters. A2J Author® 3.0, which is available at no cost to anyone using it for non-commercial purposes, may be downloaded from the A2J Author® community Website: (www.a2jauthor.org).

A2J Author® is a software tool that helps non-technical users from the courts, clerk’s offices and legal services programs develop low-cost, user-friendly instructions and forms for use on the Internet without requiring the services of a professional software developer. The A2J Guided Interviews® created with A2J Author® enable many self-represented litigants to easily complete court documents that are ready to be filed with the court.

Currently, A2J Author® is used in 36 states, the U.S. Virgin Islands, Guam, England, Australia, Canada and Singapore. More than 1,200 A2J Guided Interviews® are posted on the national server, Law Help Interactive. A2J Guided Interviews® are increasingly popular as a means to conduct online web intake for legal aid and A2J Guided Interview™ users are now able to designate a graphic more in tune with the purpose of their A2J Guided Interview™. Step-by-step instructions and graphics virtually lead users along the path to the correct legal aid office.

“A2J Author® 3.0 features several exciting enhancements, many of which were suggested by users of our earlier versions, said Chicago-Kent professor Ronald J. Staudt, CAJT director and IIT associate vice president for law, business and technology. The upgrades in 3.0 improve both the end-user experience and the A2J Guided Interviews® authoring process. The biggest enhancement is the ability for A2J Guided Interview™ users to add video or graphics components to questions. This is an especially useful tool to further explain or model complex issues for A2J Author® users.”

Enhancements to A2J Author® 3.0 offer users a variety of program possibilities, including:

? the ability to add graphics and video components to guided interview questions with the option of creating full-screen visual display for viewer satisfaction and ease;

? graphic and view options that allow users to give their clients visual explanations of the more complicated court forms, procedures, processes, etc.;

? an exit feature which enables users to customize the interview exit process and instructions with the option of leaving guided interviews before they are completed and saving the answers on the national server;

? the ability to create new interviews more efficiently by adapting previously designed questions or question sets and their underlying data components from existing A2J Guided Interviews®; and

? visual consistency as they navigate between their site, A2J Guided Interviews® and the interview host site with the capability to create and add a “branding logo” to the A2J Guided Interviews® interface.

The Center for Access to Justice & Technology at Chicago-Kent developed A2J Author® in 2005, in partnership with the Center for Computer-Assisted Legal Instruction, a nonprofit consortium of law schools whose mission includes promoting “access to justice through the use of computer technology.”

Feature improvements for the A2J Author® 3.0 were made possible by the Legal Services Corporation’s Technology Initiative Grants Program (TIG) funding through the Idaho Legal Aid Services organization. One of the biggest producers of A2J Guided Interviews® for certain landlord-tenant disputes, divorces and adult name changes, the Idaho group contracted with the CAJT to fund the A2J software improvements with their TIG award.

Chicago-Kent College of Law is the law school of Illinois Institute of Technology, a private, Ph.D.-granting institution with programs in engineering, psychology, architecture, business, design and law. The Center for Access to Justice & Technology was established at Chicago-Kent to make justice more accessible to the public by promoting the use of the Internet in the teaching, practice, and public access to the law. The Center conducts research, builds software tools, teaches classes and supports faculty, staff and student projects on access to justice and technology. In 2008, the CAJT received the Louis M. Brown Award for Legal Access from the American Bar Association’s Standing Committee on the Delivery of Legal Services.

A2J Author® 3.0 is available at no charge for non-commercial purposes at www.a2jauthor.org. Those seeking to use A2J Author® for commercial purposes, such as court vendors who may wish to incorporate the software into proprietary e-filing or case management system offerings, may purchase a commercial license from CAJT and CALI. For information on acquiring a copy of the A2J Author® software or general information on the A2J Author® Program, please visit www.a2jauthor.org.