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¡ Denied legal aid?

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October 2013

How to Get a Court-Appointed Lawyer for Your

A step-by-step guide to making a JG application

Child Protection Case

© 2013, Legal Services Society, BC

1st edition: October 2013

ISSN: 2292-0927 (Print) ISSN: 2292-0935 (Online)

Acknowledgements

Writer/legal reviewer: Katrina Harry Editor: Judy Clarke Designer: Danette Byatt

This booklet may not be commercially reproduced, but copying for other purposes, with credit, is encouraged.

How to Get a Court-Appointed Lawyer for Your Child Protection Case is a publication of the Legal Services Society (LSS), a non-government organization that provides legal aid to British Columbians. LSS is funded primarily by the provincial government and also receives grants from the Law Foundation and the Notary Foundation.

This booklet explains the law in general. It isn’t intended to give you legal advice on your particular problem. Because each person’s case is different, you need to get legal help. The information in this booklet was up to date as of October 2013.

The Canadian Constitution (Charter of Rights and Freedoms) says everyone has the right to a fair trial.

In child protection matters, once someone has been denied legal aid, they have the right to ask the court to appoint a lawyer to ensure they have a fair trial.

This request is called a “JG application.” JG is the name of a New Brunswick court case (1999) about the right to have a lawyer in a child protection case.

How to Get a Court-Appointed Lawyer for Your Child Protection Case i

Contents page

1 Introduction

2 When can I ask a judge to appoint a lawyer for me?

2 Why can a judge appoint a lawyer for me?

3 What do I have to prove to the judge?

You’ve been denied legal aid

You can’t afford a lawyer

You face a court hearing

You can’t represent yourself because the hearing is too complex

5 How do I start my JG application?

Apply to the court where your hearing will be held

Apply as soon as possible

Prepare the forms for your JG application

7 How do I prepare to go to court?

Meet with a lawyer and ask for help

If you don’t see a lawyer

8 What happens in court?

You go first

Government lawyer goes next

The judge decides

How long before I may get a lawyer ?

10 Where can I get legal help?

11 Application for an Order

15 Affidavit

Le

gal Services Society

www.legalaid.bc.ca

How to Get a Court-Appointed Lawyer for Your Child Protection Case 1

IntroductionAs soon as a child protection worker (a government social worker) contacts your family on behalf of the Director of Child Protection, talk to a lawyer as quickly as possible. You have the right to do this. You are under investigation and could lose your child.

If you are denied legal aid and then are refused again after a review, you can still apply for a free court-appointed (court-ordered) lawyer to take your case. This is called “making a JG application.”

You need a lawyer — the issues are complicated. A lawyer can help you work out an agreement with the

More information and support If you’re dealing with the Director of Child Protection (either through the Ministry of Children and Family Development or an Aboriginal delegated agency), get the following free legal aid publications. They’re available at your local legal aid office or online at www.legalaid.bc.ca/publications.

Parents’ Rights, Kids’ Rights: A Parent’s Guide to Child Protection Law in BC

If Your Child is Taken: Your Rights As a Parent

Aboriginal Child Protection Fact Sheets

An advocate is someone who can support you through the child protection process. To find an advocate, see www.povnet.org. You can also ask for a mediation.

At a mediation, the mediator will help you communicate with the ministry. If you’re Aboriginal, you can also ask for a band or community representative to support you during the investigation.

director or help you at hearings. Child protection matters often move quickly, so you need to act fast. You can make the JG application no matter where you are in the court process.

As soon as you can, speak to a family duty counsel lawyer at the courthouse. These lawyers are paid by legal aid to give free legal advice to the public. Duty counsel can help you understand the two forms that you need to fill out (provided in this booklet). Duty counsel can give you other free advice but they can’t act as your permanent lawyer. (See page 10 for more information.)

http://www.lss.bc.ca/publications

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2 How to Get a Court-Appointed Lawyer for Your Child Protection Case

When can I ask a judge to appoint a lawyer for me?You can ask a judge to appoint a lawyer for you if you:

Were refused legal aid, even after a review

Want a lawyer but can’t

afford one

Have an upcoming

court hearing

Face complicated child protection

issues

You can ask the judge to appoint a lawyer for you whether or not you’ve already been to court. You should do this as soon as you know you can apply for one. If you must appear in court before you’ve had time to prepare your application, tell the judge, and he or she will give you time to prepare.

Why can a judge appoint a lawyer for me?The Canadian Charter of Rights and Freedoms says you have the right to a fair trial. Judges have a duty to protect this right. The courts have decided that sometimes a person can’t have a fair trial if they don’t have a lawyer.

In child protection matters, if you want a lawyer and you’ve been denied legal aid (even after a review), you have the right to ask the judge to order the government to pay a lawyer for you.

This request is called a JG application. JG is the name of an important Canadian court case about the right to have a lawyer in a child protection case.


What do I have to prove to the judge?For the judge to agree that you need a lawyer to get a fair trial, you’ll have to convince the judge of the following four things. You put this information in the forms you need to fill out. Later, you’ll explain these four points to the judge at a short JG hearing.

1. You’ve been denied legal aidYou need to show the judge proof that you’ve been refused legal aid. Bring the judge the letters from legal aid that show you were refused, and that you asked for a review of their refusal and they turned you down again. If you’ve lost those letters, ask legal aid for copies.

2. You can’t afford a lawyerYou have to show the judge that you can’t afford a lawyer. Give the judge a clear picture of your finances. Be prepared to tell the judge about:

¥ Your job situation

¥ Your monthly income and expenses

¥ Your assets (any savings or valuable things you own) and any debts

¥ Your dependants

Gather any papers that can show the judge your financial situation. For example, get your bank statement, income tax return, welfare cheque stubs, pay statements, EI or disability payment statements, hydro bills, etc.

If you can, it’s helpful to tell the judge how much money you think it would cost to hire a lawyer. Ask one or two lawyers to tell you how much they think their fees would be to help you. Also ask what the retainer (deposit) would be. To find a lawyer who can answer these questions, see “Where can I get legal help?” on page 10.

If you don’t provide the judge with enough information about your financial situation, the judge probably won’t appoint a lawyer for you.


3. You face a court hearing Tell the judge what the director has done, and wants to do, about your child(ren). This information is in the Report to Court (the documents that the government social worker should have given you).

4. You can’t represent yourself because the hearing is too complex

You have to show the judge that your case is too complicated for you to be your own lawyer. For example:

¥ Your case may involve technical legal issues.

¥ The trial procedure may be difficult for you to follow.

¥ There may be too much evidence (documents or witnesses) for you to handle on your own. This may be especially true if there is a lot of evidence from the director.

A lawyer can explain to you what is complex about your case. To find a lawyer who can answer this question, see “Where can I get legal help?” on page 10.

Let the judge know about your:

¥ education level

¥ language ability

¥ knowledge of the child protection process

This will also help the judge decide if you are able to defend yourself.


How do I start my JG application?To make a JG application, you first have to fill out two forms. These forms (with instructions) are in this booklet, starting on page 11. They are:

Application for an Order. The form that tells the court that you want to apply for a court-appointed lawyer.

Affidavit. A written statement with your background information that you swear to be true. You’ll attach documents about your finances and the letters from legal aid to the Affidavit.

Fill out the forms right in the booklet, and then tear out the pages along the dotted lines. See page 6 for more information about how to prepare your forms.

Apply to the court where your hearing will be heldAll child protection hearings in BC take place in Provincial Court. Take your JG forms to the courthouse where your upcoming hearing is scheduled. This is also where you’ll appear before the judge to make your JG application. (If you’ve already gone to court, it should be the same courthouse that you went to before.)

Apply as soon as possibleTry to make your JG application as soon as you know you definitely can’t get legal aid. The first time you’re refused, you must ask legal aid to review their refusal. As soon as they deny you legal aid again, start your JG application.


Prepare the forms for your JG application

Try to meet with duty counsel (see page 10) for help to complete the Application for an Order and the Affidavit. Together, your Application for an Order and your Affidavit will become your JG application.

1. Follow the instructions on the two forms. The instructions are in the left-hand columns on each form.

2. Take the Affidavit to a lawyer, a commissioner, or a notary public to be sworn and signed. This means you swear in front of him or her that the information in the Affidavit is true, and then sign the form. There is often a commissioner at the court registry who can do it for free, but it depends on the availability at each courthouse.

3. Make a copy of the Application and the Affidavit for each person who has a right to be told about the hearing, as listed on the Application. Be sure to make and keep one copy for yourself.

4. Take the original and the copies of the Application and the Affidavit to the court registry where your hearing will be held.

5. The court registry staff will look at the forms and may ask you to correct any mistakes and fill in any blanks you missed on the Application. You’ll have to make sure any errors or blanks are fixed the same way on each copy of the Application. They’ll also give you the date for your JG application hearing.

Next, the staff will stamp each copy of your Application and Affidavit. They‘ll keep the original copies of both forms. This means the documents have now been filed with the court.

6. Take your copies of the Application and the Affidavit and serve them on (have them delivered to) everyone listed on the Application. You can fax the documents to the:

¥ Attorney General of Canada,

¥ Attorney General of BC,

¥ Ministry of Justice — Legal Services Branch, and

¥ Director’s Counsel.

To serve the documents on the parties (the other people listed on the Application), you must have the documents delivered in person, by someone, other than you, who is over the age of 19.


How do I prepare to go to court?Once you have a date for your JG hearing, think about what you’re going to tell the judge to convince him or her to appoint a lawyer for you. Use your Affidavit to help you organize your thoughts. To convince the judge, you can use:

¥ your own testimony (what you say to the judge under oath in court)

¥ your Affidavit

¥ other documents (letters, forms, bank statements, cheque stubs, etc.)

¥ witnesses (people who will talk about your situation at the hearing, under oath)

Meet with a lawyer and ask for helpIf you can, talk to a lawyer before you go to court. Ask a lawyer to go over all four points you need to convince the judge about. Ask the lawyer to explain to you what you can expect in court. This could be a duty counsel lawyer or your own lawyer. To find a lawyer, see “Where can I get legal help?” on page 10.

If you don’t see a lawyerIf you can’t see a lawyer for help, you can still make a JG application. If you follow the instructions in this booklet, the judge will know what you’re asking for.

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What happens in court?The judge will hold a short hearing about your application to have a lawyer appointed for you.

You go firstYou’ll speak first. Call the judge “Your Honour.” Say “Your Honour, I want to make a JG application because I can’t afford a lawyer and I can’t get legal aid.”

You now need to convince the judge of the four points:

1. You’ve been denied legal aid.

2. You can’t afford a lawyer.

3. You have a hearing coming up.

4. You can’t defend yourself because the hearing will be too complex for you.

You need to give evidence (provide proof) about all of the four points listed above. You can:

¥ testify (speak) under oath

¥ refer to your Affidavit

¥ present your documents

When you have finished, you can ask witnesses to speak (if you have any).

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A government lawyer, the other parties’ lawyers (if they have them), or the judge may have questions to ask you and your witnesses. Make sure to refer to your documents to make your points.

If the judge says you’ve made a mistake or that you’re missing some documents, don’t give up. Ask the judge to explain what you should have done in the first place. Ask the judge if you can speak to duty counsel for help, or ask for an adjournment (delay) so you can come back to court and apply again.

Government lawyer goes nextThe government lawyer will then probably try to prove that you can defend yourself because the case isn’t complex, or that you can afford a lawyer.

You get a chance to speak again after the government lawyer speaks. Refer only to the parts of your documents or the parts of the earlier testimony (comments) that support the points you’re trying to make.

The judge decidesAfter you and the government lawyer have had your turns, the judge will decide whether you should have your own court-appointed lawyer. Sometimes the judge will reserve (delay) his or her decision to consider the evidence and ask you to come back on another day for the decision.

If the judge denies your JG application, you can’t appeal it. However, if your circumstances change, you can make another JG application.

How long before I may get a lawyer?If the judge decides to order the government to pay a lawyer for you, contact legal aid and give them the details of the court order that you got at the courthouse. Legal aid may need a few days to confirm the court order before assigning a lawyer to your case.

Legal aid will call you with the name and phone number of the lawyer. This lawyer will represent you at your court hearing about what the director wants to do. You may have to wait several months for that hearing.


Where can I get legal help?It’s a good idea to talk to a lawyer before your JG application.

¥ Speak to a family duty counsel lawyer at the courthouse. Duty counsel can give you free advice about the director’s application regarding your child(ren), court procedures, and your legal rights (if time permits). Duty counsel can even speak on your behalf the first time you appear in court, but they can’t act as your permanent lawyer.

Call legal aid at 604-408-2172 (in Greater Vancouver) or at 1-866-577-2525 (call no charge, outside Greater Vancouver) to find out when duty counsel will be in the courthouse.

You can also visit the legal aid website at www.legalaid.bc.ca and select Legal aid — Advice, and then click on “family law” for information about duty counsel hours at your courthouse. You can call them to schedule an appointment.

You can also call your local courthouse to ask when duty counsel are available. Find your courthouse on the Ministry of Justice website at www.ag.gov.bc.ca. Search “court locations.”

¥ You can hire your own lawyer. Even if you pay for just two meetings to get basic advice about your particular case, it could be worth the cost. Find out at your first meeting what kind of help the lawyer can give you and what it would cost.

If you don’t know a lawyer who handles child protection cases, call the Lawyer Referral Service. For $25 (plus tax), you can have a half-hour appointment with a lawyer. If you decide you want to hire the lawyer, remember to ask how much you can expect to pay. Call the Lawyer Referral Service at 1-800-663-1919 (no charge) or 604-687-3221 in Greater Vancouver.

¥ You can learn more about the child protection process from the Family Law in BC website at www.familylaw.lss.bc.ca (click “Your legal issue” then “Child protection/removal”).

http://www.lss.bc.ca

http://www.ag.gov.bc.ca


Use the same court file number and court location as on the top right corner of your court documents.

Write the child(ren)’s name(s) as they appear on your court documents. Include the children’s birth dates (mm/dd/yyyy).

List the full names of the parent(s) and any other people who are parties.

You are the one filing the application. Fill in your name, address, postal code, phone number and fax number (if you have one).

You must give notice to:

• The Attorney General of Canada

• Attorney General of British Columbia

• Ministry of Justice — Legal Services Branch

• Director’s Counsel, also known as the Ministry lawyer (ask the Ministry lawyer for their contact information).

• Party — List the names and addresses of the other parent(s) and other people who are parties. The documents must be delivered in person to the other parties by someone other than you who is 19 or older. Then that person must sign an Affidavit of Service confirming they served the documents.

In the Provincial Court of British Columbia Under the Child, Family and Community Service Act

In the matter of the child(ren): Date(s) of birth:

The parent(s) of the child(ren) is/are:

This Application is filed by:

APPLICATION FOR AN ORDER

Name: ____________________________________________________________Address: ___________________________________________________________ ___________________________________________________________Phone number: _____________________ Fax number: _____________________

Director’s Counsel____________________________________________________________________________________________________________

Party ___________________________________________________________________________________________________________________________________________

Notice to: Attorney General of Canada Department of Justice Canada British Columbia Regional Office #900 – 840 Howe Street Vancouver, British Columbia V6Z 2S9 Fax: 604-666-2760

Attorney General of British Columbia P.O. Box 9280, Stn Prov Govt Victoria, British Columbia V8W 9J7 Attn: Duty Counsel Fax: 250-387-6411

Ministry of Justice — Legal Services Branch Attention: Duty Counsel PO Box 9280 Stn Prov Govt Victoria, British Columbia V8W 9J7 Fax: 250-356-5111

INSTRUCTIONS

Court File Number _________________________

Court Location ____________________________


The child is Aboriginal: q Yes q No

I will apply to this court on _______________ at ____:_____q a.m. q p.m. at ___________________________________________________________ ___________________________________________________________.

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Check one box to show if your child(ren) is/are Aboriginal or not.

Check off the box that says “An order as set out below.”

Ask the court registry staff (at the courthouse) about the most appropriate date to schedule your application hearing. Then fill in the blanks for the date, time, and address of the court location for your application hearing.

Party ___________________________________________________________________________________________________________________________________________ Party ___________________________________________________________________________________________________________________________________________ Party ___________________________________________________________________________________________________________________________________________

FORq A temporary custody order (under q s. 41(1)(c), q s. 42.2(4)(b) or q s. 49(7)(b))q A supervision order (under q s. 41(1)(a), q s. 41(2.1) or q s. 42.2(4)(a))q A continuing custody order (under q s. 41(1)(d), q s. 42.2(4)(d), q s. 49(4), q s. 49(5) or q s. 49(10))q An order permitting use of another service method, as set out below (Rule 6(10))q Extension of a temporary order (section 44)q A supervision order after expiry of a temporary custody order (section 46)q An order for access to a child (section 55)q An order that a child or parent undergo a medical or other examination (section 59)q An order under section 60 with reference to section _______q An order under section 60 dispensing with a required consentq An order varying notice requirements (section 69)q An order as set out belowS

Read your court documents and check the one box that applies.

1. The Director’s application is for: q interim custody (for 45 days) q temporary custody (for ___ months) q continuing custody


Constitutional issues to be raised and principles to be argued are:

5. The applicant relies on section 7 of the Charter of Rights and Freedoms, and the common law.

6. Section 7 of the Charter guarantees the applicant the right to a fair hearing in accordance with the principles of fundamental justice and accordingly requires funded counsel to be provided if the applicant wishes counsel, cannot pay a lawyer, and representation of the applicant by counsel is essential to a fair trial: New Brunswick (Minister of Health and Community Services) v. G.(J)., [1999] 3 SCR 46.

7. The applicant also relies on section 8(c) of the Family Court Rules (CFCSA).

In support of this application, the applicant relies upon the following:a) the Affidavit of the applicant;b) such further and other evidence as the court may permit.

____________________________ _________________________Signature of Applicant or Agent Dated

Address for service if different from Applicant’s:__________________________________________________________________________________________________________________________

Fax: _________________________________________________________

Once you have completed this form, make a copy for each person who you must give notice to (see page 1 of your Application for the number of people), plus a copy for yourself.

Take your original and all of the copies to the court registry where you will have your application heard, and have the registry staff stamp each copy.

The registry staff will keep the original of both the Application and Affidavit. This means you have now filed your documents.

Serve all the people who are listed as the people who should receive notice.

Write in an address or fax number where you want to receive mail, if different from the one you put on the first page.

Sign and date the form.

Write your age and what grade you completed in school (or higher).

4. Representation of the client by counsel is essential to a fair trial and to the ability of the applicant to make a full answer and defence. The applicant believes that the order sought is serious and complex. The applicant is _______ years old and her/his level of education is ______________________.

3. The applicant cannot pay for a lawyer.

2. The applicant wishes to retain counsel to represent them with regard to the order sought by the Director. To that end, the applicant applied to the Legal Services Society for legal aid and legal aid has been refused.


Use the same court file number and court location as on the top right corner of your court documents.

Write the child(ren)’s name(s) as they appear on your court documents. Include the children’s birth dates.

List the full names of the parent(s) and any other people who are parties.

Fill in your name and address.

Read your court documents and fill in the date of removal of your child(ren).

Documents are called “Exhibits.” Label them “A,” “B,” “C,” etc.and attach them to the Affidavit.

List the reason(s) on your letter(s) from legal aid.

Provide your age and the name of the country you were born in.

In the Provincial Court of British Columbia Under the Child, Family and Community Service Act

In the matter of the child(ren): Date(s) of birth:

The parent(s) of the child(ren) is/are:

AFFIDAVIT

I, _________________ of _______________________________ swear/affirm:

1. I know or firmly believe the following facts to be true. Where these facts are based on information from others, I have stated the source of that information and I firmly believe that information to be true.

2. My child(ren) was/were removed from my care on ____________________.

5. I have attached the letter from legal aid informing me that my application for coverage was denied as Exhibit “A” to this Affidavit.

6. I appealed legal aid’s decision to deny me coverage, but my appeal was denied. I have attached the letter from legal aid informing me that my appeal was denied as Exhibit “B” to this Affidavit.

7. I was denied legal aid because ____________________________________________________________.

8. I am currently _____ years old. I was born in ________________, and I am:

q A Canadian Citizen q A Canadian Permanent Resident q Not a Canadian Citizen or a Canadian Permanent Resident

4. I have been refused legal aid.

INSTRUCTIONS Court File Number _________________________Court Location ____________________________

Read your court documents and check the one box that applies.

3. The Director’s application is for: q interim custody (for 45 days) q temporary custody (for ___ months) q continuing custody


10. The highest level of schooling I have completed is: q Less than high school. The last grade I completed was

grade _____. q High school. q Technical or trade school. The institutions I attended and certificates/diplomas I received are:______________________. q College or university. The institutions I attended and certificates/ diplomas I received are: ________________________________.

11. I am currently: q Unemployed.

q Employed as a __________________________________.

Check one box only and fill in the blank(s).

Check one box only and fill in the blank, if needed.

12. I have attached my Income Tax Returns and Notices of Assessment from the Canada Revenue Agency for the following years________________ as Exhibit “______” to this Affidavit. I have attached _______________ _________________________________ as Exhibit(s) “__________” to this Affidavit.

Label your Exhibits (“C,” “D,” “E,” etc.) as needed. If you have not completed your Income Tax Returns, attachany other proof of income such as pay statements, orEI or disability payments, etc.,as Exhibits “__________”.

13. My financial circumstances are: a) my income is: $____________________ b) my monthly expenses are: Item Cost

Total: $___________________ c) my debts total: $____________________ d) all the things that I own have a value of: Item Cost

Total: $___________________

Review your:

− cheque stubs– employment records– bank statements– rent – hydro bill– other bills– support payments– etc.

to find these amounts.

Check one box only and fill in the blank(s).

9. My first language is ___________________, and: q I can read, write, and speak either English or French.

q I can’t read, write, and speak either English or French without help from someone else, and I need the following kinds of help reading, writing, or speaking English or French:______________________ ______________________________________________________


14. I have contacted at least two (2) private lawyers who practice in or near _________________, British Columbia, and who practice child protection law. They estimated it would cost the amounts below to represent me, and asked for retainers as follows: Lawyer#1 Hearings: $_______________ Retainer: $_______________ Lawyer#2 Hearings: $_______________ Retainer: $_______________

16. Since my child(ren) was/were removed, I have not been able to save enough money to hire a lawyer to defend me because: __________________________________________________________ __________________________________________________________ __________________________________________________________

19. Other relevant information that I think should be considered: __________________________________________________________ __________________________________________________________ __________________________________________________________

18. I believe my case is complex. My case is complex because: __________________________________________________________ __________________________________________________________

15. I have not been able to hire a lawyer because I cannot afford one.

17. I believe my case is serious because I may lose custody of my child(ren).

20. I swear/affirm this Affidavit in support of an application to have a judge order that I be provided with counsel by the Government of British Columbia.

SWORN/AFFIRMED BEFORE ME )at the city of ____________ , in the )province of British Columbia, this )___ day of __________ , 20 ___. ) ) )

_________________________Signature of applicant

)_____________________________ )A commissioner for taking )Affidavits within British Columbia )

After you have sworn this document, make a copy for each person who you must give notice to (see page 1 of your Application for the number of people), plus a copy for yourself.

Take your original and all of the copies to the court registry where you will have your application heard, and have the registry staff stamp each copy.

The registry staff will keep the original of both the Application and Affidavit. This means you have now filed your documents.

Serve all the people who are listed as the people who should receive notice.

You do not need to give the lawyers’ names.

List all the expenses/reasons why you have no extra money available.

You can explain why your case is complex, if you want (for example, the amount of documents and witnesses the director will be using).

You must sign IN FRONT OF a lawyer, a commissioner for taking oaths, or a notary public. The lawyer, commissioner, or notary fills out the date and place and also signs.

The legal aid website has information about issues that are important to Aboriginal people. See www.legalaid.bc.ca/aboriginal.

The Family Law in BC website has information about the child protection process. See www.familylaw.lss.bc.ca.

You can read all of these publications online (in PDF) at www.legalaid.bc.ca/publications.

Also available

Parents’ Rights, Kids’ Rights: A Parent’s Guide to Child Protection Law in BC

If Your Child Is Taken: Your Rights As a Parent

Aboriginal Child Protection Fact Sheets

¥ Understanding Aboriginal Child Protection/Removal Matters

¥ Understanding Aboriginal Delegated Agencies: Information for Aboriginal Families

¥ Understanding Child Protection Mediation for Aboriginal Families

¥ Understanding Court Orders and Hearings

¥ Understanding the Extended Family Program

http://www.legalaid.bc.ca/publications

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