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Advocacy group challenges constitutionality of B.C. family law legal aid regime

|Written By Alexia Kapralos
Advocacy group challenges constitutionality of B.C. family law legal aid regime
Kasari Govender says a single person working full-time for minimum wage in B.C. wouldn’t qualify for family law legal aid under the current system.

A British Columbia-based women’s advocacy group says the provincial government and the Legal Services Society — the legal aid provider in the province — are failing to provide adequate legal aid for family law cases involving domestic violence, especially where women and children are involved.

West Coast LEAF is representing the Single Mothers’ Alliance of BC and Nicole Bell, a Fraser Valley, B.C. woman who is personally affected by the inability to access family law legal aid, in a constitutional challenge against the province and the LSS. The case, which was filed in April 2017, hasn’t reached trial stage, but if it does, it’s projected to commence during February of next year in the Supreme Court of British Columbia.

“We are in a crisis situation in B.C. in terms of people getting access to the [justice] system, particularly in family law and civil law,” says Kasari Govender, executive director of West Coast LEAF and co-counsel in the case. “We have a system that’s supposed to govern everybody, but unless you could afford to get access to the justice system, that law is essentially meaningless to you.”

Legal Feeds contacted the province and LSS, but both declined comment.

Govender says plaintiff counsel will be challenging two aspects of the B.C. legal aid regime: the financial cut off and the cap on working hours, which she believes violates s. 7 (life, liberty and security of the person) and s. 15 (equality rights) of the Canadian Charter of Rights and Freedoms.

The financial threshold to qualify for family law legal aid is extremely low. This leaves people who don’t qualify for legal aid but are unable to afford the cost of legal services with very few options.

“If you are a single person and working full time on minimum wage, you don’t qualify for legal aid. There’s a very significant gap between those who could actually afford a lawyer and those who qualify for legal aid. That’s an unconstitutional bar to access public legal services,” she says.

As for the cap on hours, Govender argues that, currently, the time a lawyer could spend on the case with family law legal aid is not enough to resolve any substantive legal issues. It’s designed to deal with some interim measures and to help people in violent situations get protection orders. It’s difficult to resolve other legal matters in the time allotted, such as child custody in violent or dangerous situations, she adds.

Last fall, the provincial government filed a complete motion to strike, to throw out West Coast LEAF’s entire claim, while LSS filed a motion to strike part of the claim.

Govender says the provincial government disagrees with the remedies the plaintiffs pleaded and have challenged all of their arguments. She says the province has stated the pleadings are inappropriate for a variety of reasons, including a lack of connection between the law and the harm.

At this stage, it’s unknown whether the case will proceed to trial. A three-day hearing about the motions to strike took place Feb. 25 to 27 and the presiding judge has reserved his decision. The results of the hearing are to be determined. 

“We have quite a progressive family law system in B.C. and yet, for people who can’t afford counsel, what meaning does that have in their lives if they’re not able to access their rights under that statute?” says Govender.




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