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

Introduction

Background

The stated goals for legal aid in Canada are: (1) to ensure that the interests of justice are served; (2) to ensure that the legal rights of low-income individuals are protected; and, (3) to provide fair and equal justice (Bertrand, Paetsch, Hornick, & Bala, 2002; Buckley, 2010; Leitch, 2013; UN Office of Drugs and Crime, 2016).1 The federal government does not deliver legal aid services, but the Department of Justice Canada’s Legal Aid Program (LAP) provides funding to the provinces and territories for the delivery of legal aid services.2 The federal LAP does not contribute funding to the provinces for civil legal aid (except in immigration and refugee matters). The Department of Justice Canada contributes to civil as well as criminal legal aid in the territories through Access to Justice Service Agreements, which also cover Indigenous courtwork programs and public legal education and information. Civil legal aid is also an eligible expenditure under the Canada Social Transfer (CST), an annual block transfer provided by the Department of Finance to provinces and territories.

Each province and territory has its own legal aid plan, and each is responsible for the delivery of criminal and civil legal aid services, based on its own policies and procedures. While the federal government has jurisdiction over legislation governing divorce and related parenting and support issues, civil legal aid falls within provincial jurisdiction. There is considerable variation in legal aid programs across Canada with respect to the delivery of services, level of financial eligibility, and coverage provisions (Bertrand et al., 2002; Buckley, 2010; Dandurand & Jahn, 2018; Dupuis & Kelly, 2012-2013; Tsoukalas & Roberts, 2002; Wright, 2017; Zemans & Amaral, 2018).

The 2017 Report of the Standing Committee of the House of Commons on Justice and Human Rights (Housefather, Chair, 2017) states, “Canada does not have one legal aid system … what we have is a series of 13 provincial and territorial legal aid programs, with very little consistency among them” (p. 2).3 This raises questions about equality of access to justice services across Canada.

Purpose and objective

This report examines the impact of the lack of access to legal aid in family law cases in Canada. The objective is to identify challenges that people face in accessing justice for family law disputes in the absence of legal aid, and to analyze the impacts of the lack of access to family legal aid on certain population groups (i.e., women, residents of rural and remote communities, people with disabilities, Indigenous peoples, newcomers, LGBTQ2S+ people, official language minorities and visible minority groups).

The following research questions were asked:

Methodology

Three different methods were used in this research.

Literature review:
Existing social science and legal literature, as well as grey literature, was reviewed using the Rapid Evidence Assessment (REA) approach (Barends, Rousseau, & Briner, 2017; Davies, 2003). REA identifies relevant published studies and grey literature through a systematic and transparent approach to understanding the current state of knowledge. This involved identifying and refining inclusion and exclusion criteria for searching for relevant social science research on legal aid practices and policies, family law legal aid policies, legal aid eligibility guidelines, and impacts on certain population groups (i.e., residents of remote and rural communities, persons with disabilities, Indigenous peoples, LGBTQ2S+ people, visible minority groups and language minority communities). Databases that were used included: Academic Search Premier, ERIC, Google Scholar, HeinOnline, Index to Legal Periodicals, LexisNexis Academic, PUBMED, Scopus, JSTOR, and Academic OneFile among university databases. Searches for media reports, and grey and fugitive articles/information such as unpublished manuscripts, conference proceedings, topical bibliographies, and curriculum vitae lists, training materials, were also completed using the Internet search engines: Google.com, Google Scholar, Yahoo.ca, and, Altavista.
Document review:
The authors reviewed provincial, territorial and federal annual reports on legal aid as well as their legal aid plans, and reports and documents provided by key stakeholder interviews, as well as federal government documents provided by the Advisory Group).
Key informant interviews:
Interviews with seven key legal aid directors by telephone (see Appendix 1).

Limitations

This study had a number of limitations. First, there is very little literature on the impact of limited or no legal aid on people with disabilities, Indigenous peoples, LGBTQ2S+ groups and immigrant populations in Canada. The existing literature provides little information on the underlying complexities and challenges in seeking and obtaining family legal aid, as well as the consequences and impacts of not obtaining legal aid, especially among populations. Rather, the information presented in public reports, media and scholarly literature provides generalized and aspirational statements, some raising concerns about the effects of reduced funding in legal aid for family cases. As a result of the gaps in the literature, much of this review is based on an extrapolation from legal aid challenges in general, and applied to family legal aid, in an attempt to gain some understanding of the complexities and challenges for different population groups.

Second, although there is research from countries such as Australia, and England and Wales exploring the effects of limited legal aid in the context of family law (Troup, 1997; Flynn & Hodgson 2017; Richardson & Speed, 2019; Wong & Cain, 2019), these were not included in this study. Many of the challenges experienced in other countries do not easily translate to a Canadian context. Specifically, because of differences in laws and court structures, the federal/provincial/territorial cost sharing schemes in Canada, cost-of-living, and perhaps most importantly, the national variability in Canada of family legal aid coverage and policy.

Third, the information presented by Canadian legal aid organizations in their annual reports, government documents, and online websites does not allow for a clear understanding of the specific challenges of providing legal aid to vulnerable and marginalized communities, or of the effects of the lack of access to legal aid for these populations. The publicly available documents present some quantitative data on users of family legal aid and those denied coverage, in some cases broken down by gender. Yet, there is little research that sheds light on the human stories behind the numbers, and in particular the impact that lack of access to legal services for vulnerable and marginalized parents has on children (e.g., socio-behavioral and emotional outcomes).

Finally, the interview data in this report from the key informants was helpful, but intentionally limited as conducting interviews was not part of the original scope of the review. Interviewees were purposively selected from Yukon, Northwest Territories, Manitoba, Québec, Nunavut, and Newfoundland and Labrador, to better understand the northern realities, as well as the needs of Francophones both within and outside of Québec, with respect to legal aid services provided, including an appreciation of the impact of geography, transportation issues and technology. Another focus in selecting interviewees was to identify issues related to the language in which services are available.

To properly understand the impact of the lack of legal aid or reduced access to legal aid, it would have been necessary to undertake a significant number of additional interviews with other stakeholders. This could include, for example, interviews with legal aid staff, lawyers, judges, those who have accessed family legal aid or been denied legal aid, in particular women, Indigenous peoples, people with disabilities, LGBTQ2S+ people, and newcomer and immigrant groups.

Despite these limitations, the methodological approach of this review was rigorous enough to provide a good overview of the impact of limited or no access to legal aid in family law in Canada.

Footnotes

1 See Department of Justice website that reports on the plans and priorities of the federal government in providing funding for legal aid in Canada. For example, see Department of Justice Canada 2016-17 Report on Plans and Priorities, which can be accessed at: https://www.justice.gc.ca/eng/rp-pr/cp-pm/rpp/2016_2017/index.html (Accessed June 6, 2019).

2 See Department of Justice website, which explains the role of the federal government in providing funding for legal aid and the legal aid service agreements with each province and territory. Accessed at: https://www.justice.gc.ca/eng/fund-fina/gov-gouv/aid-aide.html (accessed June 6, 2019). Also see Resource and Caseload Assistance (2012-2013), which reports the funding across Canada for legal aid to the various provinces and territories. Accessed at: https://www150.statcan.gc.ca/n1/en/catalogue/85F0015X (accessed June 6, 2019).

3 JUST, Evidence, 1st Session, 42nd Parliament, 2 May 2017 (Mark Benton, Chief Executive Officer, Legal Services Society). Accessed at: http://publications.gc.ca/collections/collection_2017/parl/xc66-1/XC66-1-1-421-16-eng.pdf (accessed June 6, 2019).