In the family law case Vilardell v. Dunham, the mother in the case, Montserrat Vilardell, made an application to waive the fees she was being charged for every day of her court hearing.
After considering constitutional arguments by the Canadian Bar Association, B.C. Trial Lawyers Association, and the West Coast Women’s Legal Education & Action Fund, the B.C. Supreme Court ruled the fees were unconstitutional. On appeal, the B.C. Court of Appeal overturned the lower court decision.
West Coast LEAF says the decision will improve access to justice for women, but it doesn’t go as far as they had hoped.
West Coast LEAF had argued hearing fees in family law cases have an unequal impact on women because they are less likely to have the resources to afford them than men. It argued hearing fees “violate women’s equality and security rights and the principles of fundamental justice, and should be struck down on that basis.”
In his decision the trial judge had struck down the hearing fees charged by the Crown in Supreme Court trials as unconstitutional, saying the fees “materially hindered” access to the courts.
The Crown justifies the fees as legitimate efforts to recover costs and promote efficiency at cost recovery.
The Attorney General of British Columbia had argued the case did not present an access to justice problem. If the fees would hinder a litigant, the attorney general says the rules allow the judge to make an exemption.
However, appeal court Justice Ian T. Donald rejected that argument based on the fact the indigency rule applies only to the poor, not to the “struggling middle class who, while not poor in the ordinary sense, cannot afford the fees.”
He wrote: “In my opinion, were it not for the power of the courts to give relief from the hearing fees, they would be an unconstitutional impediment to justice. The power is found in an enlarged interpretation of the indigency provision.”
The Court of Appeal found hearing fees do pose an unconstitutional obstacle to the courts for many people, including the middle class, without adequate provision for those who are unable to afford them.
The court recognized the current “indigency” exemption was insufficient to capture those who can’t afford the fees, and ordered it be broadened to cover those could not meet their everyday expenses if required to pay fees.
In his decision Donald wrote: “The enlarged scope of the exemption in Rule 20-5, then, should be read as saying ‘impoverished or in need.’ The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees. Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.”
Donald allowed the appeal and set aside the order striking the hearing fees rule. While the court did not go so far as to strike down the hearing fee structure as requested it was seen as a small victory.
“Importantly, the court recognizes that women in family law cases, aboriginal persons, those with disabilities, and recent immigrants are disproportionately impacted by the current hearing fee system,” said Kasari Govender, executive director and co-counsel for West Coast LEAF. “While the court did not go as far as we hoped, it is clear that more people — including women in family law matters — will have access to the courts as a result of this decision.”