In February 2017, West Coast LEAF’s Executive Director Kasari Govender traveled to Ottawa to appear before the Standing Committee on Justice and Human Rights. Download a complete transcript of her presentation on legal aid, including the question and answer period. The audio of the session can also be streamed here.
Thank you for having me back today to speak about legal aid.
As you likely know, West Coast LEAF is a legal organization that focuses on the rights of women and girls. We work doing litigation, law reform, and public legal education. We’ve worked extensively in the area of access to justice for women in a broad systemic advocacy sense, but we also recently delved into the direct service side of things because the crisis in B.C. is so bad. I will give you some more of the details about that.
First, to pick up on the innovation point, we have partnered with UBC law in Vancouver and opened the Rise Women’s Legal Centre. The doors opened in May, just after I was last here in April. The demand was huge. We knew that there was a crisis, that’s what prompted us to spend years in developing this model. We consulted with service providers across the province, we spent years building up private funding. There’s no public funding in the clinic, unfortunately. We partnered with university in order to open this clinic. Even with all that work we were surprised that, within two weeks of opening the doors, we had a wait-list into September. The wait-list has hovered at about 100 women since then.
It’s against that backdrop that I want to tell you a bit about the state of legal aid in B.C. It was gutted in 2002—family law in particular—and family law services were cut by 60%, particularly focused on the connecting people with lawyers side of things, so not the legal information as much as the actual direct representation and advice. As you’ve heard from my colleague here, there is some interesting innovation from legal services in B.C. around the information side of things, but really, really reduced services on the representation.
There are three limitations on the family law coverage. There’s the financial cut-off, which is very low. You basically cannot make much more than minimum wage, depending on the number of dependents you have. There is a very large gap between those who are covered by legal aid, and those who can actually afford a market rate lawyer. It’s also provided mostly where there is violence in the relationship, there is very little coverage outside of that. There are very narrow circumstances in other high-conflict families, but primarily the focus is where there is violence.
If you qualify under those two criteria, you only get 25 hours of service. This is a real limitation. It’s not designed in any way—even explicitly—to meet the needs of a full family law dispute. It’s not designed to resolve custody and access issues, or anything else. It’s designed, essentially, to provide a protection order in situations of violence. In some circumstances it can cover some other interim orders, but primarily to get you a protection order. In some really complex cases, it’s not enough to do even that. I’ll give you an example of that in a moment. I want to speak about the representation side of things, and the implications of not providing access to lawyers. In my view, legal information is really important, but it is far from sufficient in actually providing legal access to justice. The major reason is that there is no rule of law for those who can’t afford it in family law. In criminal law, in other areas, there’s still law and the law applies to you whether or not you have a lawyer to help you understand your rights. In family law, that’s simply not true. I don’t say this with hyperbole, I say this in a very practical sense.
We have a very progressive piece of family law legislation in B.C., which was very exciting when it was passed a few years ago, but if you don’t have access to somebody who can tell you your rights, and somebody who can help you enforce those rights, they are totally meaningless. If you were sitting in a room with your spouse and it’s just the two of you trying to resolve your custody issue, trying to figure out who’s going to live where and where your assets go, the law has zero meaning. That means the justice system that we are all proud of in this country only applies, in family law, to those who can afford it.
Women in particular are impacted by these cuts to legal aid for a number of reasons. Primarily, it is because women have lower income because of the pay gap in this country, and so are less likely to be able to afford a lawyer. Those stats are borne out by who is applying for family law legal aid, and who gets it. Women are also disproportionately impacted by not having it. As women are still the primarily the caregivers for their children, and they’re still primarily because their safety is at risk, their children’s well-being is at risk.
That also leads me to a disproportionate impact on children. If courts don’t have access to the information they need to determine the best interests of a child, be that to stay with either parent, then the courts have their hands tied behind their backs in actually trying to meet their obligation to meet the best interests of children and children suffer through that.
You’ve heard a little bit, I think, already about some of the costs of underfunding legal aid and I think I won’t go there right now, I think I’ll wait and see if there’s questions on that. I’ll leave it as it’s more costly to underfund legal aid.
I do want to give you one example though, which is at the Rise Women’s Legal Centre we’ve had clients come in with literally suitcases full of documents from over a decade of not having a lawyer and what means is that something that could have been resolved fairly simply at the front end, if they had been able to access even summary advice at the beginning, let alone some minimal representation, they might have had their family law issues resolved much earlier. Now, no private lawyer will touch those suitcases of documents. They’re a complete disaster and it’s costing either the public purse or the nonprofit community much more to try to resolve this one case than being able to move things through quickly because of the level of complexity.
It also means that spousal violence can escalate. I had a case cross my desk recently and again, we don’t provide direct service in my office, but still we hear from the most desperate cases. A women passed through my hands who is desperately seeking protection from her abusive spouse. She has received legal aid. She has received extended services under legal aid, but all she’s gotten are temporary restraining orders, protection orders, that keep expiring. She has now gone back to say please give me more money so that I can apply for a permanent care order. She is receiving death threats. The police have been involved. The safety of herself and her children is very seriously at risk and she’s being denied legal aid because she has used up all of her hours.
Where does the federal government come into this? You may know that the CEDAW committee, the UN committee that examines the Convention on the Elimination of All Forms of Discrimination against Women, so basically the women’s bill of rights, examined Canada’s record earlier in the fall and released its concluding observations in December. It expressed explicit concern about civil legal aid in the provinces and particularly the implications of underfunding family legal aid, the implications for women’s equality. It specifically recommend earmarking funds in the Canada social transfer for civil legal aid in order to ensure that women have access to family justice with a particular emphasis on victims of violence, indigenous women, and women with disabilities.
It is also explicitly concerned about the income test thresholds, that gap I talked about between people who can qualify for legal aid and those who actually could afford to get a private market lawyer. I think that leads very clearly to the federal responsibility to step into this gap and what the feds could actually do and stay within their jurisdiction.
I’ll leave it there and wait for comments. Thank you.