The Impact of the Lack of Legal Aid in Family Law Cases

Background to family legal aid in Canada

Family law disputes are complex and occur within an emotional and often negative atmosphere where each party may feel a sense of betrayal, fear, anger and loss. Unlike other disputes (e.g., property and civil matters), parties in family law cases are expected to interact and positively engage years after their legal proceedings as they share care and responsibility for children. If the family justice process leaves the parties angry or fearful, this will negatively affect both parties and their children. Many family law cases require individualized legal advice based on their complex social and parenting context (Bala, Hebert, & Birnbaum, 2017). However, the reality is that access to legal aid is limited, and legal assistance is financially out of reach for many individuals. Often women, children, and those in vulnerable and marginalized communities suffer serious consequences (e.g., loss of parenting time, inadequate financial support) without access to family legal aid services (Canadian Bar Association, 2013; Elman & Hughes, 2013; Housefather, 2017; Hughes, 2013; Neilson, 2017; Semple, 2010; Trebilcock, Duggan & Sossin, 2012).4

The Canadian Bar Association (2015) aptly summarizes the costs of inadequate legal aid services, in both civil and criminal contexts:

There has been significant Canadian research on:

The lack of legal aid funding has serious implications in parental disputes about children, family violence, relocation, children who refuse visitation with one parent, and children with special needs (e.g., fetal alcohol syndrome, autism spectrum disorder, epilepsy, cerebral palsy).

The social, human and economic costs10 of family violence are significant, as family violence can have devastating consequences for women and children, in particular.11 Women are generally more economically disadvantaged than men by separation and divorce, and often require access to legal services to protect themselves and their children at separation, when the risk of family violence is heightened (Gadalla, 2008; Jaffe et al. 2014; Leopold, 2018; Mosher, 2015).12

Bertrand et al. (2002) reported that the availability of family legal aid is more often an issue for women, who make up 70 percent of family legal aid clients across Canada. In 2016, Karen Hudson, at that time the Executive Director of Nova Scotia Legal Aid, stated, “The demographics are that family legal aid is used predominantly by women and criminal legal aid is used predominantly by men.”13

In 2016-2017, the Department of Justice Canada14 reported that the majority of the women (64 percent) who used legal aid did so for civil legal matters, which were largely child welfare and family cases.

It is, however, important not to generalize the impacts of lack of access to legal aid on different population groups, such as women, LGBTQ2S+ people, people with disabilities, Indigenous peoples, newcomers and language minorities. Members of these groups are not homogenous and do not all experience the same challenges in accessing family legal aid across Canada (Bernhard, Landolt & Goldring, 2005; Elman & Hughes, 2013; Mosher, 2015; Neilson, 2017; UN Office of Drugs and Crime, 2016; Yu, Ouelett & Warmington, 2007).

Buckley (2010) noted that increases in the cost of living without similar increases in the minimum wage and social assistance benefits have created challenges and pointed out that eligibility levels for legal aid in Canada have generally not kept up with inflation, “leaving people without access to legal services” (p. 5). The lack of consistent legal aid funding and the high cost of legal services have resulted in increasing numbers of self-represented litigants, especially in family courts (Abel, 2012; Birnbaum & Bala, 2012; Birnbaum, Bala & Boyd, 2016; Birnbaum et al. forthcoming; Hughes, 2013; MacFarlane, 2013; Rankin, 2012; Thompson & Reierson, 2001).

The state’s obligation to provide legal aid

In 2017-2018, there were 598,848 legal aid applications for summary assistance (e.g., legal advice, information) and legal representation (e.g., more extensive legal assistance, preparation of documents, representation in court). Of the total number of applications, 54 percent were for criminal matters and 44 percent were for civil matters (e.g., including immigration and refugee assistance), with the highest proportion of civil matters being applications for family (44 percent) and child protection (22 percent).15

In British Columbia in August 2019, West Coast LEAF16 won a ruling allowing its case against the provincial Legal Services Society (LSS) to proceed to trial, where it will argue that restraints on BC’s legal aid system are increasing the risk of family violence to women and children and violating their rights under sections 7 and 15 of the Charter and s. 96 of the Constitution Act. There may well be more applications citing the Charter to argue for governments to provide legal aid assistance, particularly for legal services for women and children in family violence cases. However, no court in Canada has yet ruled a constitutional right to legal assistance in family cases, even those raising family violence concerns.

The next section explores the implications of coverage and eligibility guidelines of family legal aid across Canada on access to justice. The section will also explore the differences between obtaining legal aid under the Divorce Act and provincial/territorial legislation, as well as specific issues such as those involving family violence, race,17 culture, and marginalized populations.

Footnotes

4 Also see Study on Access to Justice System—Legal Aid (CBA, 2016) at: https://www.cba.org/CMSPages/GetFile.aspx?guid=8b0c4d64-cb3f-460f-9733-1aaff164ef6a (Accessed June 12, 2019).

5Canadian Bar Association at: https://www.cba.org/Sections/Legal-Aid-Liaison/Resources/Resources/Legal-Aid-in-Canada(accessed September 24, 2019).

6 See UNB Special Issue Journal (52), 2012 on access to justice; and the Canadian Bar Association (2013), Reaching Equal Justice Report: An Invitation to Envision and Act at: https://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/Equal-Justice-Summary-Report-eng.pdf (accessed October 1, 2020).

7 Department of Justice, JustFacts at: https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/srl-pnr.html (accessed June 14, 2019).

8 Marginalized people are defined broadly by virtue of their social exclusion, disempowered as a result of lack of resources, and/or vulnerable due to mental health issues or other issues (Crenshaw, 1995; Iyer, 1993).

9 Canadian Bar Association (2016), https://www.cba.org/CMSPages/GetFile.aspx?guid=8b0c4d64-cb3f-460f-9733-1aaff164ef6a; and The Law Society of Ontario: A Report of the Legal Aid Working Group: An Abiding Interest, 2018: http://www.lawsocietygazette.ca/wp-content/uploads/2018/02/2018-LAWG-Report.pdf (accessed June 18, 2019).

10 Department of Justice: https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/rr12_7/rr12_7.pdf; and Department of Justice: Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection, and Criminal Justice Systems can be found at: https://canada.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/mlfvc-elcvf/index.html (accessed June 6, 2019). Also see Moore (2017), The Cost of Experiencing Everyday Legal Problems Related to Physical and Mental Health at: http://www.cfcj-fcjc.org/sites/default/files/docs/The%20Cost%20of%20Experiencing%20Everyday%20Legal%20Problems%20Related%20to%20Social%20Assistance.pdf (accessed June 6, 2019).

11 Domestic Violence Death Review Committee (2017) and impact on women as a result of separation and divorce: http://www.mcscs.jus.gov.on.ca/english/Deathinvestigations/OfficeChiefCoroner/Publicationsandreports/DVDRC2017.html (accessed June 6, 2019).

12 See Department of Justice Canada at: https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/ecds-cfds.html (accessed June 6, 2019). Also see: Fontaine and Haeck (2017) at: https://www.cirano.qc.ca/files/publications/2018RP-07.pdf (accessed June 14, 2019).

14 See Department of Justice Canada at: https://www.justice.gc.ca/eng/rp-pr/jr/aid-aide/p1.html#table13 (accessed June 28, 2019).

15 Legal Aid in Canada 2017-2018, Department of Justice Canada: https://www.justice.gc.ca/eng/rp-pr/jr/aid-aide/1718/1718.pdf (accessed September 24, 2019).

16 Single Mothers’ Alliance of BC Society v. British Columbia, 2019 BCSC 1427.

17 In Ontario’s, General Auditor’s Report (2018) race based-client information is only beginning to be collected to assist in formulating legal aid strategies to serving vulnerable groups.