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

Family legal aid in Canada: coverage and eligibility guidelines

Each province and territory has its own unique characteristics. They differ, for example, in demographic composition, population size and density, as well as social and physical infrastructure. They also each have their own financial eligibility guidelines and coverage provisions related to obtaining and qualifying for family legal aid. The Canadian Bar Association’s (2013) Equal Justice: Balancing the Scales18 reports that:

“In some places, people qualify only if they are living at subsistence levels (social assistance), leaving out the working poor. Eligibility rates do not keep pace with inflation and budgetary targets are often met by offering legal aid for fewer matters, to fewer people, or through only partial assistance or repayment requirements.” (p. 9)

The vast geography of northern Canada versus southern Canada leaves many people in the North without effective access to justice (e.g., no courts or fly-in courts only at specific time periods) and general family law services (e.g., no family law information or mediation services). This is particularly challenging for low-income individuals living in Yukon, Northwest Territories, Nunavut, and Newfoundland and Labrador, where legal aid offices are only located in larger centres. Transportation and communication problems also exist due to inaccessibility related to weather and other micro (e.g., individual) and macro (e.g., structural/policies) barriers (e.g., lack of motor vehicles, lack of bus transportation, lack of air transportation) creating additional access to justice issues.19

Reid & Malcolmson (2008) and Baxter & Yoon (2014) also raised concerns about the lack of accessibility of legal services based on the geographic distribution of lawyers and the resulting disparities in access to justice. They recognized that the geographic barriers across Canada systematically disadvantage certain groups, such as Indigenous peoples and those who live in northern and remote communities where there may not be any lawyers.

The limited coverage of family legal aid also raises concerns with respect to people with disabilities (visible and non-visible),20 language minority communities (e.g., particularly for individuals with French as their mother tongue seeking legal services in Ontario, Nova Scotia and Cape Breton)21 and those with little education and poor literacy requiring face-to-face contact with a lawyer rather than print or internet materials (Elman & Hughes, 2013).

Women are the majority of family legal aid recipients (Addario, 1998; Bertrand et al., 2002). In 2017-2018, women in New Brunswick received more family legal aid certificates than men. Women in New Brunswick also had a higher application rate and were more likely to be approved for family legal aid than men (82 percent versus 72 percent, respectively (excluding child protection)).22 During that same time period, women in Nova Scotia made more requests for summary family law advice than men (55 percent versus 45 percent, respectively), and 71 percent of all family applications were made by women (Annual Report, p. 19).23 In the Northwest Territories, statistics gathered for civil legal aid approvals by case type and gender revealed that legal aid was granted most often to women in family law cases.24

To apply for legal aid in any jurisdiction in Canada, individuals must provide evidence of financial eligibility (i.e., proof of poverty). The challenge for many women, in particular those fleeing family violence, is that they may not have access to the necessary financial documents. However, in almost all jurisdictions, social assistance recipients are automatically financially eligible for legal aid assistance, and family violence is a major priority.

None of the jurisdictions provide coverage for obtaining a divorce decree if there is no corresponding application being requested for parenting issues (e.g., custody and access, child support, spousal support). New Brunswick and Newfoundland and Labrador also exclude property claims for unmarried partners.

As outlined in Appendix 2, each jurisdiction uses a mix of income and assets to assess financial eligibility. Québec has the highest financial eligibility guidelines among the provinces, and as a result provides family legal aid services to a greater proportion of family cases than other provinces (Poitras et al., 2021).

Poitras et al. (2021) found that Québec also had a higher rate of trials for parenting disputes than other provinces. While the reasons are complex, one reason for more family trials may be related to the greater eligibility for legal aid services in Québec.25 For example, in 2014-2015, there were 22,512 legal aid applications granted for family law related matters in Ontario, compared to 75,104 in Québec. This means that there are more than three times the number of applications granted in Québec with a smaller population (8.3 million) than Ontario (14 million) in 2015. This highlights the disparity in coverage between the two provinces.

Collecting statistics about the demographic profiles of those who use legal aid26 is only part of a much larger story in understanding how a lack of access to family legal aid affects the most vulnerable populations in society.27 While annual reports provide statistics on application outcomes and telephone inquiries, those reports do not capture the human condition of poverty, let alone the impact of the lack of legal aid assistance for family law problems post separation and divorce (Addario, 1998; Bertrand et al., 2002; Elman & Hughes, 2013; Hughes, 2013). Moreover, few jurisdictions collect data on the use of family legal aid by age, race, ethnicity, culture, disability, or by newcomers and immigrant populations. Further, generally, the data are presented as one category and are not separated by type of civil legal aid, (e.g., family, civil non-family, child protection).

Notably, as British Columbia has implemented a pilot project of extended duty counsel in the family courts, it has started to collect demographic information, including age, Indigenous ancestry and languages spoken.28 However, this pilot project was undertaken as a summative evaluation process for examining cost-efficiencies and cost-effectiveness and not part of ongoing data collection by the legal aid agency.

Since April 1, 2018, Ontario has been collecting raced-based information on clients using legal aid certificates. The 2018 Auditor’s Report outlines the following users of legal aid: 11-13 percent of clients are Indigenous, 32-37 percent are visible minority clients, 44-48 percent are White clients, and 7-9 percent “others.”29 In addition, the report states, “for family law, about three out of four certificates are issued for women, and over 50% of these were for cases involving domestic violence” (Ontario Ministry of the Attorney General, 2018, p. 270).30

The Canadian Bar Association in its report on Equal Justice (2013) pointed out that there is, “little hard data about Canada’s justice system—especially—relative to what we know about our healthcare and education systems” (p. 6). Without collecting data to be able to inform practice and policy, it is difficult to evaluate the impacts of lack of funding or reduced funding on family legal aid (Moore & Farrow, 2019). In fact, when there is a reduction in funding to legal aid, rarely if ever, is there also a strategy to monitor and evaluate the cost and benefit (e.g., costs to society and socio-emotional and behavioral costs to the litigants) on those who are already marginalized. Reduced funding to legal aid budgets leave more people vulnerable and marginalized and increase inequities in access to justice (Moore & Farrow, 2019).31

The recent report of the National Inquiry into Missing and Murdered Indigenous Girls and Women (2019) details in poignant terms the impacts not only the colonialization and oppression of Indigenous women and girls, but “the distinct disadvantage in their access to justice and justice-related resources necessary to respond to violence (p. 631).”32 Among the 231 recommendations was a call for more training and education for lawyers in general, and more access to family law lawyers who understand family violence concerns.33

The lack of legal aid or limited legal aid has resulted in an increase in the number of self-represented individuals (Birnbaum, Bala & Bertrand, 2013; MacFarlane, 2013). The Canadian Bar Association argues that the lack of current funding for family legal aid may save governments money in the short term, but imposes long term increased financial and human costs on society and individuals, especially women and their children.34

Buckley (2010) described the legal aid crisis (one element of the access to justice crisis) as having three dimensions: under-funding, disparities in coverage across jurisdictions (e.g., being funded in one province but not in another), and fragmentation of coverage within each legal aid program. She argued that the trend has been away from a conception of a publicly funded scheme for legal services and towards schemes that prioritize cases based on rationed resources. In 2019, very little appears to have changed given the reductions in legal aid in some parts of the country.

In June 2019, Ontario announced that their legal aid services will no longer issue certificates for independent legal advice (ILA) for family mediation or separation agreement certificates, and that they are eliminating family law advice counsel summary advisory services.35 In British Columbia, the recent announcement of a one-time grant of 7.9 million dollars to temporarily increase payments to legal aid lawyers is a very welcome development, but the lack of access to family justice services in that province remains a significant concern.36 Saskatchewan is also facing challenges due to funding shortages and the restructuring of legal aid in Saskatoon.37

One of the few studies to explore methods for cost-savings in delivering family legal services and the economic impacts of using Pro Bono Ontario (PBO) to provide assistance (e.g., duty counsel, amicus counsel and legal information) to self-represented litigants in certain Ontario courts, found that there was a ten dollar return for every dollar invested (The Resource, 2017). The authors found, “the estimated cost savings and economic benefits provided by PBO’s services in FY [fiscal year] 2015-16 amounted to $5.76 million” (p. 2).38 “The Ontario provincial government was the biggest beneficiary ($5.16 million) of the total economic impacts of PBO’s services”.39

Footnotes

19 Key stakeholder telephone interviews with Karen Wilford, Director of Legal Aid in the Northwest Territories and with Barbara Barker, Legal Services Solicitor in Newfoundland and Labrador.

20 Convention on the Rights of Person with Disability, United Nations, Treaty Series (2015).

21 See JUST, Evidence, 1st Session, 42nd Parliament, 16 May 2017 (Réjean Aucoin, President, Association des juristes d’expression française de la Nouvelle-Écosse) at: https://openparliament.ca/committees/justice/42-1/57/rejean-aucoin-1/only (accessed June 20, 2019). Also see Report of the Standing Committee on Justice and Human Rights (October, 2017), p. 20-21 at: http://publications.gc.ca/collections/collection_2017/parl/xc66-1/XC66-1-1-421-16-eng.pdf (accessed June 29, 2019).

22 See New Brunswick Commissioner Legal Aid Report, 2017-2018, p. 15, https://www.gnb.ca/legis/business/currentsession/59/59-1/LegDoc/Bil/November/NBLSC-CSAJNB-AR-RA2017-2018.pdf (accessed June 15, 2019).

23 See Nova Scotia Legal Aid Annual Report, 2017-2018: https://www.nslegalaid.ca/wp-content/uploads/2018/10/Annual-Report-2017-2018-1.pdf (accessed June 15, 2019).

26 See Department of Justice Canada, Legal Aid in Canada, 2016-2017, demographic profiles (e.g. criminal and civil) at: https://www.justice.gc.ca/eng/rp-pr/jr/aid-aide/p1.html#table13 (accessed June 19, 2019).

27 Also, see nine composite stories about individuals accessing the legal system in general and the impacts on their lives at: CBA (2013) https://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJusticeFinalReport-eng.pdf p. 16- 37 (accessed June 20, 2019).

28See Legal Services Society of BC: Expanded duty counsel evaluation (2017) at: https://lss.bc.ca/sites/default/files/2019-03/EXP%20FDC%20Refresh%20Evaluation%20Report-Final.pdf (accessed June 20, 2019).

29 See Auditor’s Report, Legal Aid Ontario (2018), p. 269 at: http://www.auditor.on.ca/en/content/annualreports/arreports/en18/v1_305en18.pdf (accessed on June 14, 2019).

30 See Auditor’s Report, Legal Aid Ontario (2018), p. 270 at: http://www.auditor.on.ca/en/content/annualreports/arreports/en18/v1_305en18.pdf (accessed on June 14, 2019).

31 See Raine, N.C. (August 23, 2018) and concerns about the impacts in Saskatchewan on restructuring legal aid at: https://www.eaglefeathernews.com/news/concerns-around-restructuring-layoffs-at-legal-aid. Also see ARCH Disability Law Center, August 2019, 20(2) where they discuss legal aid impacts on the disabled (Lattanzio, R. Executive Director) at: https://archdisabilitylaw.ca/arch_alert/arch-alert-volume-20-issue-2/#cuts-to-legal-aid (accessed June 17, 2019).

32 See Final Report at: https://www.mmiwg-ffada.ca/final-report/ (accessed June 17, 2019).

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

35 See: https://www.legalaid.on.ca/en/news/newsarchive/2019-06-12_changes-to-legal-services.asp; and there will no longer be duty counsel available in Superior Court in Ontario, except for Unified Courts, see: http://legalaid.on.ca/en/info/downloads/Service-Guide_2019-DC-family-EN-FR.pdf (accessed June 17, 2019). Also see cut backs to duty counsel at: http://legalaid.on.ca/en/news/newsarchive/2019-06-18_DC-services-changes.asp (accessed July 6, 2019).

38 The Resource for Great Programs, Inc. (2017). Return-on-investment analysis for Pro Bono Ontario: Final Project Report, September 18, 2017 at: https://www.probonoontario.org/wp-content/uploads/2018/10/ROI.pdf (accessed October 4, 2019).

39 Ibid.