“After being denied Legal Aid in 2002, I represented myself twice in court. My ex-partner’s lawyer was brutal towards me. I had practiced going to court and representing myself, but this did not matter because I cannot argue with a lawyer. I am not a lawyer. I am just a mother.”
The idea that everyone is equal under the law is a fundamental principle that most Canadians take for granted. Our constitution guarantees equal access to justice for men and women. But when it comes to legal services in BC, it seems the constitution doesn’t hold much weight.
In 2002, as part of massive cuts to public services, the provincial government dramatically cut legal aid coverage. The budget for the Legal Services Society (LSS) — which provides legal aid services to British Columbians — was slashed by almost 40 per cent over three years. The vast majority of this came from funding for family and poverty law legal aid.
For women, the results have been devastating. Women’s need for legal services is overwhelmingly in the areas of family or civil law — precisely where most of the cuts were made.
Without adequate legal representation, women are losing custody of their children, giving up valid legal rights to support, and being victimized through litigation harassment. They are spending endless days navigating a complex legal system — researching and preparing legal documents, appearing without a lawyer for highly charged divorce and custody cases, and agreeing to settlements that are not in their own or their children’s interests.
“I feel as though this experience is ruining my daughter’s childhood. This has been ongoing for seven years… My daughter is now seeing a counselor to help her deal with the effects of the case… I always thought that this was supposed to be about her best interests. Yet it seems very clear that this is not at all about her interests.”
Family law includes divorce and custody disputes that the courts deal with when marriages break down. Poverty law involves things like appealing decisions about welfare and Employment Insurance benefits and disputes with landlords (such as evictions).
Provincial funding for poverty law has been completely eliminated. Family law legal aid is now restricted to emergency situations — where someone is concerned for her safety or that of her children, or has reason to believe the spouse will leave the province with the children.
Using violence as a threshold for eligibility is wholly inappropriate given the complexities of domestic violence. Only access to adequate, quality legal representation based on need, not violence, will ensure that survivors of spousal abuse can free themselves from such situations.
“I was so scared at that time [in court] that I was physically sick, but I had to be strong because no one else would represent me. I have been through a lot but this was the most embarrassing experience…. When I came to Canada, I was told I could get help and this country supports the best interest of children — I just don’t agree or see this happening.”
Legal aid exists to ensure that people who cannot afford to pay for a lawyer aren’t left to fend for themselves. In criminal law cases where there is a threat of jail our justice system has always emphasized the importance of a fair trial and provides legal aid to ensure that those charged with a criminal offence have access to a lawyer to defend them. Family law, however, is viewed by the courts as a dispute between private individuals. This view of family law as “private” has been used by governments across the country to justify inadequate funding for legal aid.
BC’s Attorney General Geoff Plant makes no apologies for the cuts. Nor does he shy away from acknowledging his government’s view that the courts should not be involved in family law matters. But this view of the law completely ignores his government’s constitutional obligation to make sure policies do not undermine women’s equality, and the key role government plays in the complex web of law that governs marriage breakdown. It also ignores the reality that is going on in our courtrooms.
The sad irony is that the province collects considerably more than it spends on legal aid. A provincial tax of 7.5 per cent on legal services was created in 1992 specifically to fund legal aid. It currently provides approximately $90 million to government coffers. This, in addition to $9 million from the feds for criminal legal aid, far exceeds the current spending of $55 million.
In the words of retired Madame Justice Claire L'Heureux-Dubé of the Supreme Court of Canada: “It is a matter of justice! Legal aid for women is not only a matter of equality as it is one of rights.”
Alison Brewin is the Program Director at West Coast LEAF (Women’s Legal Education and Action Fund) and author of Legal Aid Denied: Women and the Cuts to Legal Services in BC, co-published with the Canadian Centre for Policy Alternatives.
Quotes are taken from affidavits collected by West Coast LEAF. Sworn testimony is being collected until a strong test case emerges to establish the constitutional obligation of the government to provide adequate civil legal aid. West Coast LEAF is an organization dedicated to ensuring constitutional equality guarantees are upheld by government.