The challenge — Single Mothers’ Alliance, Nicolina Bell and A.B. v. B.C. — was launched last week.
The case pits the non-profit Alliance, which represents single mothers across British Columbia, and two individual complainants, against the provincial government and the Legal Services Society, the non-profit organization responsible for providing legal aid in British Columbia.
“What the challenge is aimed at is the way in which two facets of B.C.’s legal aid regime covering family law operate, and that’s the financial eligibility criteria being incredibly low, so you have to be quite poor to even qualify financially for legal aid,” says Raji Mangat, co-counsel in the case and director of litigation for West Coast LEAF. The non-profit is launching the complaint with the BC Public Interest Advocacy Centre.
Mangat says the financial eligibility criteria leaves people in a “no man’s land,” where it’s “assumed” they can afford counsel.
“The second facet that we’re challenging is the cap on hours, there’s a 25-hour general prep cap for matters heard in the provincial court, and a 35-hour general prep cap for matters being heard in the Superior Court,” she says.
“Both facets of this are problematic in our view, because they operate in a way that discriminates against lower and moderate income women. . .”
Mangat says, for example, if a woman has language barriers or barriers around her ability, that can make the cap “add up to even less.”
The notice of civil claim rests on s. 7 of the Charter, which states, “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” It also relies on section 15, which states, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
“In many cases, women are fleeing from violence — from violent relationships, from family violence — and are unable to sort-of secure the assistance they need in order to navigate the system where they would be facing off against their ex-partner who has been abusive,” says Mangat, who says this could impact legal acts like getting a protection order.
“[W]omen litigants of limited or moderate means engaged in Family Law Proceedings are disproportionately affected by the unequal distribution of legal aid benefits. Individuals with other kinds of legal issues where constitutionally protected interests are at stake, such as criminal law matters, have access to greater legal aid than do women in Family Law Proceedings,” says the notice of civil claim.
“As such, women litigants of limited or moderate means engaged in Family Law Proceedings are disproportionately unable to avail themselves of a lawyer’s services where their fundamental interests, including life and security of the person, are at stake. This is discrimination based on sex.”
The constitutional challenge has been announced a little more than a week before the provincial general election May 9, 2017.
Mangat says there has been work done on the issue for more than a decade, because “there was huge cuts in B.C. to legal aid in the period between 2002 and 2005.”
“Now, the legal aid program for family law in B.C. is really quite restrictive,” she says.
A statement provided to Legal Feeds by the Legal Services Society said that the society hadn’t reviewed the court documents filed in relation to the claim.
"Legal aid will provide a lawyer for financially eligible clients where there is a family emergency, specifically where there is a risk of violence, where there is persistent denial of access to a child, or there is a risk that a child will be permanently removed from the province,” said the statement.
The statement notes that for a “typical” case obtaining a protection order, a lawyer would get about $2,600 for preparing affidavits and getting ready for court.
It also notes the "most common reason for rejecting an application is that the client’s situation does not present an emergency situation within LSS’s narrow coverage.”
"The number of applications does not represent the unmet demand for services,” said the statement.
"Many people (usually women) who would qualify financially for legal aid are advised by social service agencies not to apply if they are not facing a family emergency covered by LSS."
A spokeswoman for the British Columbia government did not provide comment.
There are restrictions during the election period on what comment government can provide.
Update: May 1, 2017 2:52 p.m. Statement added from Legal Services Society.