Justice Canada releases commission report on impact of lack of legal aid in family law disputes

Professors Rachel Birnbaum and Nicholas Bala tapped to author the report

Justice Canada releases commission report on impact of lack of legal aid in family law disputes

The Department of Justice Canada has recently released a commission report discussing the impact of the lack of access to legal aid in family law disputes in Canada.

The “Impact of the Lack of Legal Aid in Family Law Cases” identifies challenges people face in accessing justice for family law disputes in the absence of legal aid and analyzes the lack of access to family legal aid in vulnerable populations. Justice Canada tapped professors Rachel Birnbaum and Nicholas Bala to write the report.

The report examines four major topic areas: (1) background on family legal aid; (2) family legal aid coverage and eligibility guidelines; (3) innovative approaches to providing access to family legal aid services to specific communities; and (4) impacts of limited family legal aid funding for family cases.

Background on family legal aid

Birnbaum and Bala considered the difficulties in accessing legal aid for family law cases and the consequences for parents, children, and society. They found that legal assistance is “often too expensive” for many individuals, and access to legal aid is “very limited.”

“Often women, children, and those in vulnerable and marginalized communities suffer serious consequences,” Birnbaum and Bala wrote.

They also found that lack of legal aid funding and the high cost of legal services has increased the numbers of self-represented litigants in family courts.

Family legal aid coverage and eligibility guidelines

Birnbaum and Bala explored the implications of coverage and eligibility guidelines for family legal aid across Canada. They noted that each jurisdiction has unique demographic characteristics, financial coverage, and eligibility guidelines.

“The vast geography of northern Canada versus southern Canada leaves many people in the North without effective access to justice and general family law services,” Birnbaum and Bala wrote. “This is particularly challenging for low-income individuals living in Yukon, Northwest Territories, Nunavut, and Newfoundland and Labrador, where legal aid offices are only located in larger centres.”

Birnbaum and Bala found that Quebec has the highest financial eligibility guidelines in Canada, providing legal aid services to a greater proportion of family cases than other provinces.

They also identified certain population groups facing barriers in accessing legal services: (a) Francophones in rural and remote areas situated in predominantly English provinces; (b) immigrants and persons whose first language is neither English nor French; (c) individuals with limited education and literacy skills; (d) members of Indigenous groups and racialized communities; and (e) individuals living in northern and rural communities where family legal aid services are limited.

Innovative family law service approaches

According to Birnbaum and Bala, these innovations include unbundled legal services and coaching, internet-based legal services, community-based information, child legal representation, and family violence-related initiatives.

“Service providers in all jurisdictions are aware that more information and assistance is required for those with low-incomes who need legal aid assistance in family law disputes,” Birnbaum and Bala wrote.

Impacts of limited legal aid

Birnbaum and Bala stressed that the lack of access to family law services and increased self-representation in family proceedings are “growing concerns” in Canada. They found “limited family law funding” as one of the causes of the increasing number of self-represented litigants in family law disputes.  

“Increase in self-representation and cuts to legal aid impose significant resource costs on the family justice system, thus negatively impacting the efficiency of the family justice system,” Birnbaum and Bala wrote.

Conclusion

Birnbaum and Bala found that the lack of access to legal aid for family law matters significantly affects women, Indigenous peoples, marginalized groups, and residents of remote and rural communities. Moreover, they found that the effect of the lack of access to legal aid services can lead to serious consequences, such as loss of parenting time, loss of appropriate child and spousal support, and loss of rights to matrimonial property and pensions.

They stressed the need for a “research initiative” in collaboration with researchers, federal, provincial and territorial partners, lawyers, legal organizations, the judiciary, community organizations, and the public to determine the long-term impacts of lack of access to family legal aid and improve the efficiency of legal aid services.

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