Is there a constitutional right to legal aid?

In 2017, the Single Mothers Alliance of B.C., a grassroots non-profit organization led by single mothers for single mothers with a mandate of community building, leadership and advocacy, launched a constitutional challenge to British Columbia’s legal aid program.

Represented by West Coast LEAF, the Alliance argued that the province and its legal aid provider, the Legal Services Society, had failed to provide adequate family law legal aid for women fleeing violent relationships. British Columbia has, LEAF’s submissions claimed, a constitutional responsibility to ensure that women fleeing abuse have access to the justice system. Its failure to do so amounts to discrimination against women and children and violates their rights to life and security of the person by increasing their risk of exposure to violence and intense stress.

Earlier this month, the province went to court to have the case thrown out. As we await the court’s decision on the province’s motion, we have the opportunity to look at the implications of this constitutional challenge not just in British Columbia but across the country.

It’s a gendered problem

The story starts with women’s poverty. As noted in It Shouldn’t Be This Hard: A gender-based analysis of family law, family court and violence against women, published by Luke’s Place in 2012, 51.6% of single mothers live in poverty. There is a constellation of reasons for this: inadequate levels of social assistance, lack of effective enforcement of child support orders, lack of employment for women and affordable child care for those who can find work and an ongoing gender-based wage gap.

There are other gendered realities of families in Canada.

Women continue to be the primary caregivers to children at a higher rate than men. This can affect their ability to be employed during their relationship as well as after it ends. It also means that, especially in the context of abuse, it is critically important for them to have legal representation if they wish to ensure they continue to have primary responsibility for their children.

Women are more often the victims of family violence – especially coercive controlling violence – than are men. This coercive controlling abuse often continues post-separation, with the abuser engaging in what is commonly called legal bullying.

Legal bullying includes such behaviours as ongoing intimidation and harassment throughout the family court case, delaying tactics intended to wear down the woman so she concedes to the abuser’s wishes on important issues like custody and child support or even returns to him. Without proper legal representation, a woman is extremely vulnerable to these tactics, which can have serious impacts on her physical and emotional well-being and on the outcome of the family law case; consequences that she and her children may have to live with for many years.

Taken together, these factors create a gendered landscape on which the issue of access to legal representation in family court plays itself out.

Lots of people don’t have lawyers

The rate of unrepresented people in family court remains at a disturbingly high level across Canada, with somewhere between 50 and 80% of litigants without lawyers. Legal aid programs across the country are largely responsible for this: the financial eligibility criteria exclude many people who do not have the capacity to pay for a lawyer themselves; when coverage is granted it is inadequate for the lawyer to address all the client’s issues, and the rate paid to lawyers is so low that increasingly few are willing to accept legal aid cases.

Anyone without a lawyer is at a disadvantage in a family law proceeding. Just as we don’t expect people to provide their own medical care, we should not expect people to represent themselves in cases that carry the long-term impact that a family law case does.

A woman fleeing abuse who doesn’t have a lawyer faces even greater challenges. The time of separation is when women are at the greatest risk of being killed by their former partner. The trauma she likely has as a result of the abuse will interfere with her ability to engage effectively with the family law process. The abuser may have told her that no one will believe her when she talks about the abuse, that he will get the kids because he has more money or because his mother will babysit, that he will tell the court she is an unfit mother or that he will not have to pay child or spousal support because she made the decision to leave. If he engages in legal bullying, she will be subjected to ongoing intimidation and harassment that will further traumatize her and make her vulnerable to acceding to his demands.

It is critical for women to have legal representation when they leave abusive relationships and, because of women’s poverty, making that happen falls largely to legal aid programs.

What’s up in Ontario?

Ontario is generally considered to have the Cadillac model of all legal aid programs across the country. Consistent with this reputation, Legal Aid Ontario which, in 2016/17 provided legal representation to more than 14,000 victims of domestic violence, has instituted a domestic violence strategy, with a three-year action plan.

Through this action plan, LAO has increased the financial eligibility criteria so that victims of domestic violence will qualify for a certificate even when their incomes are higher than the cut-off for other people seeking a legal aid certificate. LAO plans to implement a pilot to mitigate legal bullying by making it easier for abusers to have legal representation. It is hoped that this will help control some of the behaviours of abusers who engage in legal bullying.

LAO has also implemented mandatory domestic violence awareness training for its staff as well as lawyers on its family law panel, so that anyone accessing LAO services or programs will be met by a common level of knowledge and skills. Plans are in the works to make it easier for survivors of domestic violence to change lawyers and to expand coverage to encompass more legal issues.

LAO is to be commended for taking these important steps, but problems continue to abound. The so-called gender-neutral analysis of violence within the family that is applied by virtually all institutions – police, criminal court, legal aid and others – is highly problematic. A spending freeze by the current provincial government, which chose not to implement the gender-based violence action plan of the previous government, has had an impact on parts of LAO’s domestic violence strategy. Policies from the provincial office are not always effectively implemented at the community level.

Changing attitudes takes time, so women continue to encounter staff and lawyers who, despite having received training, do not offer the quality of service envisioned by LAO.

Until LAO raises the hourly rates paid to lawyers who take legal aid certificates, it will remain a challenge for women fortunate enough to obtain one to find a lawyer who will accept it.

What could this case mean?

While the outcome of the B.C. case will apply only to B.C. – unless it is eventually appealed to the Supreme Court of Canada – all of us should pay attention to it. If the Alliance and LEAF are successful, we could be looking at a turn in the road in which access to proper legal representation is seen as a constitutional right entrenched in the Charter of Rights and Freedoms. That would be good not just for women fleeing abuse and their children who are involved in family law proceedings, but potentially for other vulnerable populations dealing with a variety of legal issues.

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