The Impact of the Lack of Legal Aid in Family Law Cases
The purpose of this review is to examine the impact of the lack of legal aid in family law cases in Canada, particularly among populations that experience systemic disadvantage. Lack of access to legal aid for family law cases profoundly affects adult litigants and their children.
The two objectives of this review are:
- to identify challenges that individuals face in accessing justice for family law disputes in the absence of legal aid; and
- to analyze the impacts of a lack of or limited representation 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), particularly in family law cases.
To meet these two objectives, the following research questions were asked:
- What policies govern how legal aid is granted in family law cases?
- Are cases involving family violence treated differently, and if so, how?
- Are there differences in legal aid eligibility criteria, such as whether the matter is proceeding under the Divorce Act or provincial legislation?
- Are there unique challenges to providing legal aid for family law cases? If so, what are they?
- What are the issues, challenges and impacts unique to providing access to justice for certain population groups, and do some groups face greater barriers than others?
The review examines four major topic areas:
- background on family legal aid;
- family legal aid coverage and eligibility guidelines;
- innovative approaches to providing access to family legal aid services to specific communities; and,
- impacts of limited family legal aid funding for family cases.
The first topic considers the difficulties in accessing legal aid for family law cases and the consequences for parents and children, as well as for society as a whole. Legal assistance is often too expensive for many individuals and access to legal aid is very limited. Women suffer serious consequences without access to legal aid services. Children may also be exposed to risk and families may suffer economically.
The second topic examines coverage and eligibility guidelines for family legal aid across Canada. Each jurisdiction has its own unique demographic characteristics (e.g., population size, rural versus urban centres), as well as financial coverage and eligibility guidelines. While the territories receive the most assistance for legal aid on a per capita basis in federal cost-sharing, they also carry a larger burden as a result of geography, isolation, and lack of social services compared to southern Canada. Québec is the province that has the highest financial eligibility threshold, and as a result provides more family law services through legal aid than other provinces on a per capita basis. None of the jurisdictions provide coverage for divorce if there is no corollary relief requested for parenting issues (e.g., custody, access, child support). New Brunswick and Newfoundland and Labrador also exclude property claims for unmarried persons even when they financially qualify for legal aid.
Applicants experience barriers beyond the limitations imposed by the coverage and eligibility guidelines. For example, applicants face practical barriers in the legal aid application process, a lack of legal aid information, barriers due to the location of services (e.g., geographic inequities), and lack of legal aid coverage for some matters (e.g., divorce, property). There are additional barriers in accessing legal services for certain population groups, including: Francophones in rural and remote areas in predominantly English provinces; immigrants and persons whose first language is neither English nor French; those with limited education and literacy; members of Indigenous and racialized communities; and, individuals living in northern and rural communities where services, particularly family legal aid services, are limited.
Collecting data about demographic characteristics of legal aid applicants and users, services provided by legal aid organizations, and financial eligibility is necessary for understanding cost-effectiveness and efficiency. However, quantitative data alone does not tell the full story of how being unable to access legal aid—that is to say the social, behavioural and emotional, or human story—of how individuals experience legal aid. There is, at present, little research on this larger, more complex story, specifically in relation to family legal aid.
The third topic examines innovative approaches to providing family law services to specific communities. These innovations include, for example, limited scope legal services (e.g., unbundled legal services and coaching), internet-based legal services, community-based information, child legal representation, and family violence initiatives. Service providers in all jurisdictions are aware that more information and assistance is required for those with low-incomes who need legal aid assistance in family law disputes.
The fourth topic examines the effects of limited family legal aid funding. The lack of access to family law services and the increase in self-representation in family proceedings are growing concerns in Canada. Limited family law funding is one of the causes of the increasing number of self-represented family litigants. This makes the family justice system more costly to operate and affects court outcomes for vulnerable family litigants and their children. It is also vitally important to know the human costs (e.g., socio-emotional, health, employment, and housing) for adults and children in addition to the financial costs of not being able to access legal aid in family disputes. While there has been more empirical research on the impact of self-representation as a result of lack of legal aid assistance, there needs to be a comparable examination of the impacts on vulnerable and marginalized communities.
The authors conclude that opportunities for future work could include collaborative work between researchers, governments, legal aid service providers, lawyers, and litigants to conduct quantitative and qualitative research on long-term impacts of limited legal aid assistance in family disputes, as well as to study how to improve the efficiency of legal aid services. Areas that collaborative research could address include: better tracking of parenting orders; comparing outcomes for litigants who are legally represented and those who are self-represented; proceedings that involve overlap between family proceedings and criminal, child welfare and immigration matters; and, longitudinal research in these types of family law cases.
While government policies and programs cannot be expected to meet the needs of all of those affected by family law problems, those who are the most vulnerable and marginalized in society would benefit from better access to family justice. Improved data collection and evaluation research are necessary for the improvement of services for vulnerable and marginalized populations and are a necessary step for effective program and policy discussions.
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