“The Impact of the Lack of Legal Aid in Family Law Cases”

Written by Eric Epp

The goal of legal aid in Canada is to ensure the interests of justice are served, protect the legal rights of those with limited income, and provide fair and equal justice.[1] Legal aid, however, far from captures all those who need representation and, when underfunded for family cases, the impacts are detrimental. These impacts are explored in “The Impact of the Lack of Legal Aid in Family Law Cases” recently released by Justice Canada.

The objectives of the review were to identify challenges individuals face in accessing justice without legal aid and, to analyze the impacts of the lack of or limited representation on certain populations.[2] In achieving these objectives, it explores four topics: the general background to Family legal aid, Family legal aid coverage and eligibility, innovative approaches to providing family law services, and the impacts of limited Family legal aid funding.[3]

The review’s key takeaway is that the impact of an underfunded legal aid service most severely hits those who are already marginalized. This includes language minority communities, people with disabilities, those with low education/literacy, rural/remote (often northern) communities, and particularly in family law, women. As a simplification, the clientele of legal aid are primarily male in criminal law and primarily female in family law.[4] This simplification certainly holds true in Manitoba where the 2021 Legal Aid Manitoba Annual Report notes this demographic split.[5]

According to the authors, women are more vulnerable in situations of family law disputes for a variety of reasons. For one, they do not have specific financial documentation to prove they qualify for legal aid. This is especially so when fleeing family violence.[6] Although these demographics are often not tracked well, it is more common than not for the women using family legal aid services to be leaving intimate partner violence.[7] This is a significant issue of vulnerability for Indigenous women particularly.[8] The lack of proper family legal aid funding has even been argued to violate sections 7 and 15 of the Charter.[9] Children are similarly vulnerable, and in cases of self-representation, which rise accordingly with a lack of funding, are unlikely to have their best interests looked after.[10]

Besides the disproportionate impact on women, the report notes wide disparity in service provided to rural/remote communities. There is a stark difference between the northern legal reality of Canada and the south. Northern communities have either none or infrequent fly-in courts, there is often no accessible family law information, no mediation services, high transportation time and costs, and general weather barriers.[11] Additionally, there are often few or no lawyers.[12] The underfunding of legal aid services exacerbates all these problems. Thus, northern communities are essentially left with no effective system of dealing with family law issues with underfunded legal aid.

Less considered impacts of limited funding noted by the report include legal aid lawyers only having a small amount of time for each case; attempts to resolve problems outside the legal system, which may result in losses of legal rights; health/social problems stemming from unsolved problems; and, added court costs and time due to self-representation.[13] These all heavily impact the above-noted groups and society, in general. The Canadian Bar Association has argued that less funding for legal aid does not save money in the long term, while also inflicting more human costs on impacted individuals.[14]

The review ends by advocating for collaboration between all the stakeholders of proper legal aid funding, including canvassing and listening to the effected vulnerable and impacted groups.[15] If family legal aid is reduced or underfunded, it is deeply important to understand these perspectives and needs when planning how to navigate these potential challenges.

In Manitoba, funding and coverage for family legal aid trends higher than most other provinces.[16] This is likely an outcome that stems from Legal Aid Manitoba (LAM) providing a broad coverage of types of family law cases and a higher income eligibility in Manitoba.[17] LAMs Agreement to Pay Program, which raises the income eligibility cut-off by as much as $20,000, depending on the size of family,[18] is the major factor which raises the financial eligibility cut-off of LAM. Under this plan, individuals and families who do not qualify for free legal aid, may still be eligible to pay for full representation but at a lower legal aid rate, rather than the rate of a private bar lawyer. This plan sets Manitoba’s legal aid financial eligibility higher than all other provinces and territories, but for Nunavut and the Northwest Territories.[19] This is crucial in making Manitoba legal aid more accessible to the working poor who might otherwise have been forced to self-represent or fall through the cracks of the legal system.

[1] Department of Justice Canada, The Impact of the Lack of Legal Aid in Family Law Cases, by Rachel Birnbaum & Prof. Nicholas Bala, (Ottawa: Justice Canada, 6 November 2019) at 7.

[2] Ibid at 5.

[3] Ibid.

[4] Ibid at 11.

[5] Legal Aid Manitoba, “2020/21 annual report: Delivering Access to Justice for Low-Income Manitobans” (2021) at 21-22, online: < https://www.legalaid.mb.ca/wp-content/uploads/annual_report_2021.pdf> [https://perma.cc/2DT8-DCFQ] [2020-21 Annual Report].

[6] Birnhaum & Bala, supra note 1 at 14.

[7] Ibid at 14-15.

[8] Ibid at 25.

[9] Ibid at 12.

[10] Ibid at 21.

[11] Ibid at 13.

[12] Ibid.

[13] Ibid at 21-23.

[14] Ibid at 10, 15.

[15] Ibid at 26.

[16] Department of Justice Canada, Research and Statistics Division and Legal Aid Directorate, Legal Aid in Canada, (Ottawa: Justice Canada, 2022) at 30, calculated by comparing full legal representation approvals for family law cases as a percentage of total provincial population.

[17] 2020-21 Annual Report, supra note 5 at 8, 10.

[18] “Do I Qualify Financially?” (last visited 28 August 2022), online: Legal Aid Manitoba <https://www.legalaid.mb.ca/financial-rules/do-i-qualify-financially/> [https://perma.cc/FX45-LGPU].

[19] 2020-21 Annual Report, supra note 5 at 8.

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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