Real A2J

Access to legal aid – a critical component of any meaningful policy commitment to access to justice (A2J) – has been rife with challenges for decades. It’s not complicated: people should be able to have legal representation, regardless of their ability to pay for it, when they are dealing with serious legal issues. However, this has never been actualized through adequate financial investment in legal aid programs anywhere in Canada.

In particular, legal aid services in the family law area have been severely underfunded, and their importance ignored, while much more attention has been given to criminal law legal aid programs. This becomes a constitutional gender-equality issue, because more men access legal aid for criminal issues and more women need family law legal aid. Further, those women involved in family law cases are often poorer than are men. It’s also a safety issue: many of these women are fleeing abusive partners and need family court orders to keep themselves and their children safe.

Legal aid programs are administered by provincial/territorial governments, which receive much of their funding from the federal government in the form of transfer payments. Each jurisdiction decides what kinds of programs to offer and sets its own criteria in terms of what legal issues will be covered, financial eligibility, number of hours of coverage to be provided, how much lawyers will be paid and so on.

Advocating with Legal Aid Ontario to improve the services available to survivors of IPV has been a front-burner issue for Luke’s Place since it first opened its doors, and I suspect it will remain so long after I retire. Our successes have been limited.

While the pandemic brought a much-needed, short-term infusion of money directed at IPV survivors, those special allocations have come to an end. Once again, even women who earn barely the minimum wage are deemed to have incomes too high to meet the financial eligibility criteria to be granted a legal aid certificate, even though they cannot possible afford to pay their own legal bills.

Suing the government

In 2017, a British Columbia organization then called the Single Mothers’ Alliance and now called the Centre for Family Equity (CFE) brought a constitutional challenge against the provincial government and its legal aid plan. The lawsuit argued that the government and legal aid had failed to provide adequate family law legal aid to women leaving relationships in which they had been abused, thus violating their rights to equality, life and security of the person as enshrined in sections 7 and 15 of the Charter of Rights and Freedoms. Lawyers for the plaintiffs argued that women fleeing abuse were denied A2J because, without legal representation in their family law cases, they and their children were at increased risk of exposure to violence.

The case dragged on for years, with the provincial government twice attempting to have it thrown out. Nonetheless CFE persevered, as did two individual plaintiffs, single mothers who had survived IPV, and West Coast LEAF, which provided the legal expertise.

Last week, the case was settled with an announcement from the government that it plans to invest $29 million to develop a new family law legal clinic for IPV survivors and expand legal aid eligibility criteria to allow more families affected by IPV to qualify for legal aid assistance.

In making the announcement, British Columbia’s Attorney General Niki Sharma, referred to her past work as a lawyer:

“As a lawyer, I saw firsthand the life-changing impact that getting the right legal support at the right time can have on people’s lives, especially people fleeing violence and their children.”

Looking ahead

This new funding will support the establishment of multidisciplinary, trauma-informed legal clinics that will provide both in-person and virtual services, including but not limited to legal representation, to survivors of IPV. It replaces, as West Coast LEAF says on its website, a one-size-fits-all approach with robust, multidimensional and sustained services.

Raji Mangat, Executive Director of West Coast LEAF, had this to say about last week’s announcement:

“Two decades ago, the provincial government significantly cut family law legal aid services Following these cuts, many single moms could not get the help they needed in incredibly difficult circumstances involving family violence. This expansion will provide a historic level of access to legal aid for people who often struggled to navigate the family law system on their own.”

Legal Aid British Columbia’s CEO Michael Bryant was on hand for this historic announcement. After indicting the present system with these words: “Family law litigation has been weaponized by the powerful and privileged to abuse women further through an avalanche of legal procedures, burying them in paper, [and] exhausting their legal aid budget,”  he went on say, with a distinctly gleeful tone to his voice, that “now those low-income folks will get a platoon of Legal Aid family lawyers who can stand up to the powerful, hoisting them on their over-lawyered petard.”

Kudos to West Coast LEAF and the Centre for Family Equity for their work over the past seven years to bring and maintain the constitutional challenge that led to this outcome. Congratulations are also owed to the government and LABC for coming to the table ready to engage in meaningful settlement conversations.

But most of all, I want to thank the two single mothers, survivors of IPV, who decided they were going to fight back against a system that discriminated against them, thus exposing them and many other women to ongoing risk of violence. Without them, there’s no certainty any of this would have happened.