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Through a series of provincial meetings and focus groups conducted by the Nova Scotia Coalition of Women for Justice between 2000 and 2002, women in Nova Scotia identified access to adequate legal representation and legal aid as a primary focus, along with racism, for equality research and advocacy. The Coalition carried out narrative research in 2002-2003 with women who had been clients of Nova Scotia Legal Aid, and with Nova Scotia Legal Aid lawyers to identify barriers to women’s access to legal aid and justice.
Our research confirms that equitable legal representation for women in family law cases is not only a matter of dollars going to civil versus criminal law. Rather, the societal inequality experienced by women and their increased legal needs in order to respond to this inequality must be examined. The sometimes-frustrated lawyers and their women clients participating in the research agreed on the following key qualitative issues related to legal aid and adequate and equitable civil or family law.
* Woman abuse is a frequent factor in clients’ legal needs, but it is not often screened for, nor consistently addressed.
* Civil legal aid, which is often seen as primarily serving women’s needs, is serving system needs, not women’s legal needs as women would define them.
* Legal representation dealing with questions of minimal social and economic entitlements is women’s law, and is inadequately addressed. This has significant impacts on women’s ability to respond in family law matters.
Woman Abuse and its Impact
Lawyers identified many ways woman abuse affects client needs:
« I have clients under 19 with children who can’t live at home because of abuse and they can’t get support. I’ve argued with Community Services over this. It leads to the loss of the child because of ‘no stable place to live.' »
« There needs to be more coordination between community services and legal services. Typically, [woman] abuse is the crisis and children are involved but there are time delays in getting support-women can’t wage a legal battle without resources. »
« Male judges don’t appreciate the weight that should be given to abuse issues. »
« Where the father is abusing, the mother may be powerless to stop it. »
« Lawyers need to receive training on partner violence and its impacts on cases. »
Currently in Nova Scotia, the responsibility to identify abuse issues is left to individual lawyers who are not provided with screening tools or protocols. Women report that legal aid lawyers generally don’t inquire about abuse. When abuse is brought to light, lawyers’ responses are mixed. Some treat it sensitively, understand the fears and risks, and use this knowledge in seeking just results. Others ignore it. Some lawyers feel they simply do not have access to enough resources for expert witnesses to speak in court on the impact of woman abuse on the abusive partner’s ability to parent or on endangerment.
The Nova Scotia Coalition of Women for Justice recommends the following ways of partnering with Nova Scotia Legal Aid.
- Work together to create a screening tool to identify partner abuse in clients’ lives.
- Increase judicial education on abuse issues by creating an education package including academic work on the impact of intimate partner abuse on parenting ability and on the risks for women and children where access is not limited.
- Increase resources available for research and expert opinion on matters where woman abuse is a factor.
Women’s Needs or System Needs?
Women reported legal aid lawyers’ limited ability to conduct investigations when ex-partners are not providing full or accurate financial disclosure-a limited ability likely associated with caseloads. Legal aid lawyers expect women to do much of their own investigation but women are very limited in their ability to do so due to lack of resources or child care, or because they fear provoking abuse from the ex-partner.
Almost all lawyers interviewed identified caseload as a challenge:
« I am spreading myself thinner and thinner. »
« It would take me 5 minutes to help women with some civil matters, but my caseload is so high, I can’t. »
« I am so busy I just keep my head down. »
« They’re so busy in that…office, they’re just processing cases, so you’re not going to fight.… »
In family law practice, the source of the overwhelming workload is not only the sheer numbers of cases, but the nature of the family law cases being handled through legal aid. Lawyers described burdens related to child apprehension matters:
« 25% of my file load is child protection, but it takes up 80% of my time. In Metro, salaried justice lawyers can devote their full time to these…they bombard you with paperwork. »
« In Children’s Aid cases…there is a high level of intimidation [of clients] and Children’s Aid is non-supportive of mothers. I have to fight hard for the smallest concessions. A lot of these assessors are on fishing expeditions. They say she has to do x, y, z-it’s hard to fulfill addressing every issue she’s ever had in her life. »
« There is an imbalance on cases involving Children’s Aid. I get affidavits attacking on all issues and then social workers can’t help with the needs [in a timely fashion vis a vis hearings], as they are ‘waiting for assessments.' »
« The fundamental issue is that social workers do not have the resources to help women with parenting. This is frustrating for legal aid because you can’t just consent without hearings on these cases but at hearings you don’t have anything to show because enough was not done [by parents to address the issues raised by Children’s Aid Society]. It’s very discouraging work. »
Black women clients in particular identified themselves as unfairly targeted for child apprehension. Lawyers do not (and perhaps feel they cannot, given caseloads) consider raising discrimination in fighting these apprehensions.
Some family lawyers also questioned the time spent on cases generated by Community Services’ requirement that all women with children receiving social assistance seek child support:
« I see many women in here because Community Services wants them to pursue maintenance. Community Services should have its own lawyers to do this. And women may not want to pursue for legitimate reasons, but then abused women are threatened with being cut off from social assistance. »
These lawyers feel they are servicing the needs of Community Services, not of women, because measures provide no net gains for women even when they are successful. These efforts are sometimes seen as dangerous for women when the other partner has been abusive. If not dangerous, they are sometimes seen as potentially disruptive of women’s lives in other ways, such as when the woman has no wish for a long-gone male parent to be a presence in her family and to have an effect on her survival. When lawyers perceive contact with the other parent as dangerous, they reported being able to successfully « fight » Community Services to drop the requirement to pursue. However this takes away from their time and resources.
Economic and Social Issues
A holistic view of legal aid representation that addresses women’s actual life situations, inequality and legal needs would encompass representation in vital civil matters other than family law. Legal aid in Canada now seldom provides coverage for those pursuing economic or social entitlements from the state or others holding power over their lives, such as landlords, utilities, and schools, unless they are directly related to covered family law matters. Many long-time legal aid lawyers identified the dropping of these types of services as a disappointing change in their practice over the years. Many lawyers identified these areas as gaps disparately affecting women who are the majority of adults living in poverty. Comments from lawyers include:
- Women need help with challenging determinations of disability benefits and CPP.
- We need to get the courts to look at positive obligations to provide social assistance, especially where liberty is on the line.
- Economic, social justice, cultural issues-there is just one person [on staff].
- Income support and housing-eligibility [for social assistance] and department policies-their interpretation disparately impacts women-such as « man in the house » rules.
Women Need Advocacy on the Right to Adequate Assistance
Positive state obligations to provide economic and social benefits is a growing area of analysis, and one that is of great concern to women, who are less moneyed than men as a group. While the Supreme Court of Canada decision in Gosselin v. Québec (Attorney General) 2002 SCC 84, is discouraging to some, other analysts look to the dissent and even parts of the majority decision for the basis of future litigation approaches. Along with consideration of the existence of such positive obligations comes the need for entitlement to legal aid to pursue them, without which such rights would have little meaning.
Addressing women’s legal needs including social and economic entitlement may be better served by a move away from categorical entitlement schemes. As Mary Jane Mossman states in « Gender Equality and Legal Aid Services (1993) » published in the Sydney Law Review 30 at pages 41- 42:
« Categorical entitlement is a major feature of legal aid schemes in Canada.… On the surface, such a scheme appears gender neutral in terms of…choices about the eligibility of applicants and categories of entitlement. From the perspective of feminist analyses however, legal categories that define rights and obligations may frequently conceal hidden (and gendered) bias….[F]eminist analyses have consistently challenged the neutrality of legal categories, either because women were not involved in defining categories…or because their interests may have been regarded as less important. »
A new way of viewing services that fairly and holistically reflects women’s needs should be developed and resourced. The current menu of services and categorical schemes need to be reviewed altogether by government with attention to disparate impacts on women and with input from women’s organizations.
The starting point for defining appropriate legal aid coverage should be women’s lived experiences of poverty, abuse, family responsibility and inequality for which legal representation is necessary to remedy. To pursue claims for equality in legal aid representation through litigation will require building on the Gosselin dissent and reviving and expanding earlier Supreme Court of Canada directions in defining equality.
Pamela Rubin is a lawyer based in Halifax, Nova Scotia. Her principal work involves development and evaluation of innovative justice programming that is informed by gender analysis and particularly by women’s safety, fairness and equality concerns.