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

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Challenges and impacts on vulnerable and marginalized groups

The Ontario Civil Legal Needs Report (Ontario study, 2010)67 and the BC Civil Legal Needs Survey68 (BC study, 2009) identified vulnerability factors such as income, gender, age, membership in equality seeking groups (e.g., Francophones outside Québec, people with disabilities, members of racialized communities, and LGBTQ2+ people), geographic location, and type of legal problem. Members of these groups, in general, are compromised not only in terms of having legal problems resulting from or exacerbated by social and financial disadvantages, but may also lack the ability to know where to access legal aid services in their community. Both studies confirm earlier findings of other barriers in accessing justice as well as legal aid, such as:

• the complexities of the legal aid system (e.g., the documents required to apply for legal aid, understanding the eligibility guidelines);
• little or no legal aid coverage for some matters69 (e.g., divorce, property); and,
• the lack of knowledge regarding legal aid information and location of services (e.g., geographic inequities).

The Ontario study (2010) also identified additional barriers faced by:

• Francophones in rural areas, immigrants and persons whose first language is neither English nor French; with disabilities;
• those with limited education and literacy;
• racialized communities;
• women; and,
• individuals living in northern and rural communities where services, particularly legal aid services do not exist (also see Housefather, 2017; Reid & Malcolmson, 2008).70

Yu, Ouelett & Warmington (2007) provide an empirical examination of services for refugee integration into Canadian society. Many of the challenges faced by newcomers are compounded by separation and divorce. These researchers also found that barriers to accessing legal aid create additive challenges that negatively impact integration into Canadian society. Many refugees and immigrants settle in urban areas where housing is expensive, and this exacerbates social and economic barriers upon separation and divorce. Wayland (2006) reports that public policy fails to appreciate that newcomers and refugees have not only settlement problems upon arrival, but also require legal information about their rights in general. Women from newcomer communities seeking to leave abusive relationships may be especially vulnerable.

Refugees and newcomers71 often lack awareness that their family problems, including family violence, may have a legal dimension or that they can seek help through the legal system. They also often lack awareness of how to access legal services, have language challenges, and may experience trauma from the migration process. As a result, immigration support services in many communities try to provide access to legal information and legal aid. However, these immigration support agencies also lack resources and do not have legal staff (Wayland, 2006).

The challenges that refugees, newcomers, Indigenous populations, racialized minorities and people with disabilities face in getting access to justice reflect broader concerns about the effects of income inequality.

Women and family violence concerns

Family violence was once viewed as a “private matter,” with the police and criminal courts involved only in the most serious cases. In the last quarter of the twentieth century, there were significant changes, with the establishment of shelters and other programs for victims and survivors of family violence, and the enactment of new laws and policies to deal more effectively with this issue in criminal, child welfare and family law matters.

Family violence concerns in family law disputes post-separation and divorce are highly gendered, as the woman’s common role as primary caregiver for their children often exacerbates their vulnerability (Bala et al., 2017; Neilson, 2017; Sinha, 2013).72 Women are more likely than men to be the victims and survivors of abuse and are more likely to be in need of legal aid services for economic and parenting issues, as well as court protection (Birnbaum et al., 2014; Birnbaum et al., 2017; Leopold, 2018; Gadalla, 2008).

In addition to the concerns of family violence in refugees and newcomers, the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019) and Martinson & Jackson 73 (2017) have raised awareness of the special challenges faced by Indigenous women who are victims and/or of family violence, highlighting the need for professional education and collaboration between the family and criminal justice systems.74

To prove family violence in family law cases and ensure that the family court addresses it appropriately, victims often need legal representation, which for many means access to family legal aid services.75 More work needs to be done as outlined in the Department of Justice Canada report (2013) on linking the criminal and family justice systems in responding to family violence as well as with legal aid organizations.76

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