No one should have to experience trying to navigate the legal system to secure safety for themselves and their children, without a lawyer, while fleeing a violent partner. But in BC, it’s all-too-common.
After decades of under-funding, the state of legal aid in BC is so poor that people are often left with the choice go far into debt through legal bills, or face their abuser in court, alone. That’s why in 2017, we brought a challenge to BC’s legal aid system. We are arguing that the provincial government and Legal Services Society have failed to provide adequate family law legal aid for people who are fleeing abuse or violent relationships.
But what exactly is so wrong with legal aid? We decided to do some myth-busting to explain how the system is broken, and why we must hold the government to account to ensure that everyone has access to justice.
Myth 1: If you can’t afford a lawyer, you can get one through legal aid.
The income cut-off for legal aid is extremely low: a single person (without children) working a minimum-wage full-time job does not qualify for legal assistance. That means that only those living in deep poverty will quality for legal aid, but far more people are in need of it — three out of every five applications for family law legal aid representation are denied.
A social support service shouldn’t force you into poverty before you can even get through the door
When Nicolina Bell, the plaintiff in our case, applied for legal aid as a single mother living on maternity benefits, she was denied because she had a small amount of money in retirement savings. She had to exhaust all of her savings, including her small pot of retirement funds, in order to become eligible for legal aid.
A social support service shouldn’t force you into poverty before you can even get through the door, putting you in a position where you will potentially need to access more social supports later on.
Myth 2: If you qualify for legal aid, your lawyer will work with you until your case is resolved.
If you are seen as “in need” enough to quality for legal aid, in most cases you will get just 25 hours with your lawyer. That is supposed to cover not only time in court, but also the time a lawyer will spend learning about your case, reviewing documents, negotiating with the other side, and preparing for court.
Family law cases are often complex, and for people fleeing violence these minimal hours are usually only enough time to get an initial protection order (an order that can keep a violent spouse away in the short term). These band-aid solutions don’t resolve the actual issue or provide lasting safety and protection.
The strict time limit can also push legal aid lawyers into trying for the quickest — rather than the best —solution in order to resolve the case before their hours run out. If your legal aid hours run out before your case is resolved, you can either attempt to represent yourself, or start paying your lawyer out of pocket, sometimes going deep into debt.
Photo Credit: The Gender Spectrum Collection: Stock Photos Beyond the Binary
Myth 3: The problem is that legal aid lawyers are charging too much.
Legal aid lawyers make far less than lawyers who are in private practice. In fact, last year legal aid lawyers were planning to strike after not having received even a cost-of-living increase in 13 years. That strike was avoided after the province agreed to a 25% wage increase for legal aid contract lawyers, but staff lawyers were only offered a 2% increase. The 26 mostly women and Indigenous lawyers who administer the legal-aid system are the first point of contact for people seeking legal aid, and are paid about 30% less than the government’s lawyers. That means it’s difficult to retain staff, which makes it even harder to run the legal aid system.
Stagnant salaries are tied to the chronic underfunding of legal aid, whose budget was slashed by 40% between 2002 and 2005, and by 60% for family law legal aid. The temporary increase in pay for legal aid contract lawyers is a good step, but doesn’t come close to fixing this broken system.
[C]ases are often more drawn-out due to self-representation
Myth 4: If you can’t afford a lawyer and don’t qualify for legal aid, you can always just represent yourself.
Having to examine an abusive ex-partner in court, alone, in order to keep custody of your children, is something no one should go through. Survivors of violence who are put in this position often have to face not just their abuser but also a trained and experienced lawyer on the other side. This is an intimidating prospect, even without having to face the person responsible for the trauma and violence you’ve experienced.
In fact, these cases are often more drawn-out due to self-representation, and the longer a family conflict goes on without resolution, the greater the risk of serious family violence. In the case of our plaintiff, Nicolina, she ended up going into debt to pay a lawyer, rather than face the man who had threatened her life and hoping she would be able to do a good enough job at self-representing to keep her family safe.
So what does this all mean?
Access to justice should be a right, not a privilege for those who can afford it. We have progressive family laws in BC, yet if people aren’t able to access the advice and representation of a lawyer, they won’t be able to access the protections of the law.
While the province has slightly increased funding to legal aid in recent years, it’s not enough. Worse, the government continues to pour money into fighting our challenge in court.
There is a solution. If the government chooses to fully fund legal aid, it would mean that people in BC would not have to sacrifice their financial security, their health, and their children’s safety in order to separate from their abusive partner.
What can you do?
Do you want to support our legal aid challenge? Let people know about these issues by sharing this blog with your friends; sign up to our email list for updates; and make a donation to support this case.
Catherine Hart (they/them/theirs) is the Manager of Fundraising at West Coast LEAF.
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