Women’s Voices in the Struggle for Family Law Legal Aid: A Matter of Justice

“It is a matter of justice! Legal Aid for women is not only a matter of equality as it is one of rights.”
– Claire L’Heureux-Dubé, recently retired Justice of the Supreme Court of Canada

Many years ago, West Coast Legal Education and Action Fund (LEAF) identified access to legal aid in family law matters as a key component to achieving women’s equality in B.C. The inability to assert her rights when her marriage breaks down can have a devastating impact on a woman and her family. The strength of the ‘father’s rights’ perspective in family law has allowed our legal system to ignore some fundamental realities in women’s lives: women remain the primary caregivers of children; women are more likely to abandon professional and economic benefits in order to facilitate that relationship; and women are far more likely to end up in poverty after marriage breakdown than their former male partners.

The budget cuts introduced by the B.C. government in the spring of 2002 exacerbated this reality for the women of the province. Amidst massive cuts to social services, women’s centers, childcare and education programs, and income assistance, the government slashed legal aid services by 40%. The bulk of the cuts were managed by the Legal Services Society (LSS) through the elimination of all poverty law services, virtually all family law services, and the closing of over thirty community and Native community law offices; leaving only seven regional offices.

LSS was stripped of its independence from government and directed to provide legal aid services only in situations that were established government obligations under the Charter – criminal, young offenders and child apprehension – ignoring a number of papers and studies describing women’s need for family law services. In addition, the government created a new requirement to access any family law service: the presence of publicly recognized domestic violence. However, even if violence is present in the relationship, it is only possible to access up to eight hours of legal representation for the purposes of getting a restraining order or varying a custody order for safety reasons.

In response to these changes and cuts, West Coast LEAF recognized the vital importance of building the opportunity to establish, in law, the constitutional obligation of governments to provide civil legal aid. But the piece that seemed to be missing, for the government and the public, was the actual evidence that this was a gendered reality; that cutting family law and poverty law legal aid was not only impacting women’s right to equality, but was only made possible by a government that was prepared to ignore women’s existing disadvantage.

To begin building this argument and the evidence, West Coast LEAF has been collecting the sworn affidavits of women who have been affected by the lack of adequate legal aid.

A common theme in the affidavits is the presence of domestic violence and abuse, though often not in the form recognized by LSS, or even of the nature that would allow women to access legal aid. Most of the affiants have received some legal aid over the years, and some have gone into bankruptcy and poverty paying for legal representation. All of them have dealt with the court system without a lawyer; two women provided affidavits swearing they have not acted on their rights to support and maintenance simply because they cannot get legal representation. One woman is still with her husband because she realizes that if she leaves him, she and her disabled son will not be able to afford a home.

The following quotes are from the affidavits we have collected so far:

“I do not know the law well enough to challenge what is said and done by my ex-spouse’s lawyer. I am able to read and understand the case law and a lot of the concepts in family law, but I do not understand the technical or procedural aspects…On several occasions, my ex-spouse’s lawyer has served me with materials and documents minutes before going into court…I am not sure what legal options are available to me when my ex-spouse’s lawyer fails to obey the Rules of Court.” Affiant #16.

“No one in the courtroom recognized that I was representing myself or that English is not my first language. I was standing there alone trying to protect the boys. This new judge…disregarded the other judge’s decision. She said that my children could go back to overnight visits. The judge said my ex-partner’s actions were “just different parenting”. 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. “Affiant #14

“It is a part time job for me, costing me approximately 20 hours per week.” Affiant #2

“This case has been addressed in court approximately thirty-eight times. Of those, I appeared on my own approximately twenty-five times… I am not a lawyer. Not only is it difficult to spend hours getting ready, but the children suffer, I am a nervous wreck, and then the judge demands to know if “this is all I have”.” Affiant #15

“In order to pay legal fees (she has had a mix of legal representation and self-representation) I have had to sell all my assets and borrow money from friends and family. I have recently declared bankruptcy. My total debt for legal fees incurred during these divorce proceedings is upward of $72,000…My continual attempts to find legal representation has been emotionally and physically draining. I have trouble sleeping and eating, especially now that I know I have to represent myself…I am unable to adequately care and provide for my children.” Affiant #6.

“My legal situation has had a profound effect on my family back in India, though we still speak. However, all my friends and community members who spoke with me before do not speak to me now. I have no friends or close community members I can turn to because of this situation. I have no separation agreement in place with my husband, and receive no support from him, which I desperately need, I was forced to flee my home because of threats and violence and have struggled to survive on my own with little income. I have not been able to assert any rights of support because of my inability to file any court documents because of my lack of legal aid and support.” Affiant #10.

“I had a nervous breakdown around Christmas time…On top of the health problems I have and trying to put my life in order, this has added to my worries. I spent three days crying last week. Instead of doing things to help with other problems in my life I must worry about the court proceedings. I feel stupid because I am unable to represent myself…Sewing is all I can do for employment, I do not even know how to use a computer.” Affiant #3.

“Not having a lawyer was terrible. I could not sleep. I was taking anti-depressants. I had to go to my doctor who prescribed me with anti-depressant and sleeping pills. I was on medication for a month.” Affiant #4.

“I feel devastated by the situation; it is like a wound that never heals.” Affiant #12

References

i For a full description of the legal aid cuts, please see Legal Aid Denied: Women and the Cuts to Legal Services in B.C. at www.policyalternatives.ca/bc.

ii For a full description of the campaign and more quotes and information on family law legal aid, please go to www.westcoastleaf.org.

Alison Brewin is the Program Director of West Coast LEAF.