Family justice not family violence

In BC, most applications for family law legal aid are denied outright or the legal support provided is insufficient to achieve any meaningful resolution of important issues. As a result, many people fleeing family violence are faced with an impossible choice: They can navigate the family law system alone, including facing their abuser in court, or they can give up their legal rights.

Without full legal representation (which only the wealthy can afford), survivors face drawn-out conflict with their abusers, escalating and sometimes life-threatening violence, unfair outcomes, and the risk of losing custody of their children. We’re not just at risk of a two-tier legal system: we’re already there.

That’s why we are going to court to defend the right of survivors to fair and equal access to the family law system in the aftermath of relationship violence. No survivor of violence should be deprived of the legal help necessary to protect their rights and safety, as well as the safety and wellbeing of their children.

Single Mothers’ Alliance v BC is centred on the rights of single mothers because it draws on case law and social science research that have historically focused on women’s experiences. However, we know that all people marginalized by gender can experience family violence and that dynamics of family violence may permeate all forms of interpersonal relationships.

About the case

Single Mothers’ Alliance v BC is a constitutional challenge against the Province of BC and Legal Services Society (now known as Legal Aid BC) for failing to provide adequate family law legal aid to women leaving abusive relationships. West Coast LEAF is providing legal representation to the plaintiff in the case,  Single Mothers’ Alliance BC (SMA).

The case, launched in April 2017, alleges that BC has a constitutional responsibility under the Charter of Rights and Freedoms to ensure access to the family law system for women who are fleeing violent relationships or are facing ongoing abuse from ex-spouses. SMA will argue that BC’s legal aid system violates women’s constitutionally protected rights to equality, life and security of the person, and access to justice by increasing their risk of exposure to violence.

When the case was launched, SMA was joined by two co-plaintiffs with lived experiences of the family law legal aid system. These individuals bravely shared their stories of abuse and inadequate access to justice to help improve access to legal aid for all survivors of violence. While each had to withdraw from what has turned into complex and multi-year litigation, their stories helped to shape the case and we’re grateful for their participation.

The BC government has twice sought to stop the case from proceeding to trial.

In 2018, the Province and LSS applied to the court to strike out the claims in whole (the Province) or in part (LSS). The Province argued that the claims were doomed to fail in their entirety. LSS argued that some of the remedies in the case were unavailable and should be struck out. On August 23, 2019, the BC Supreme Court ruled in no uncertain terms that the case could go ahead as intended.

In early 2022, the Province brought a court application challenging SMA’s ability to continue the litigation on its own without individual single mothers as co-plaintiffs. If successful, the Province’s application will end the case after more than five years of litigation and extensive trial preparations.

Courts have long recognized the problem of unequal access to justice and allow organizations like SMA to bring legal challenges on behalf of directly affected people in certain circumstances. In these cases, organizations have what is called “public interest standing.”

By challenging SMA’s public interest standing, the BC government is seeking to deny an important case from ever being heard. Over the past two decades, there have been many government and public reports about the inadequacy of family law legal aid in BC. However, the BC government has refused to meaningfully act on their recommendations. If SMA doesn’t get its day in court, this lack of accountability will only continue, and survivors of violence will continue to experience the brunt of the harms.

 

What’s next

The public interest standing hearings will take place August 23-25, 2022. If we are successful, the trial will go ahead as (re)scheduled in February 2023.

 

What legal aid means for women and their families

When people fleeing relationship violence don’t have a lawyer to represent them in their family law dispute, conflict with an abusive ex can be drawn out and intensified, often resulting in unfair outcomes or survivors giving up on the legal system. Violence can escalate, endangering them and their children, and they may even lose custody.

Often, abuse doesn’t end when a relationship is over. In fact, one of the methods that abusive ex-partners will use to continue to threaten and intimidate is the court system itself. There can be a huge power imbalance in family law cases: one person is represented by experienced counsel, while the other is self-representing and trying to navigate a complex system with little knowledge or support.

This scenario is all too common in BC today. More than two decades ago, legal aid in BC was drastically cut by 40% overall and by a shocking 60% for family law. Today, three out of every five applications for family law legal aid representation are denied.

Access to family law legal aid is highly restricted. First, it’s generally limited to those who are recognized as needing an immediate court order to ensure their own or their children’s safety. Second, financial eligibility is based on extremely low income and asset requirements. These exclude a huge number of people who cannot afford a lawyer, including many minimum wage earners, even if their circumstances would otherwise be covered by legal aid. As a result, some people are forced to cash out even modest savings (like an RRSP) and thus be put into greater poverty to become eligible.

Even when people do qualify for help from a legal aid lawyer, the hours their lawyer can spend preparing for the case are capped at such a low number that many of their legal needs go unmet.

 

Take action

West Coast LEAF believes that every survivor of violence should have access to the legal help necessary to protect their rights and safety and their children’s well-being.

Do you agree? Here are two powerful ways you can join our fight for fairness in BC’s family law legal aid system.

 

Media

To arrange a media interview, contact Iman Baobeid, West Coast LEAF’s Manager of Communications at ibaobeid@westcoastleaf.org or 604-684-8772, ext. 226.

 

Case documents

 

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