By Bill Veenstra, Canadian Bar Association, B.C. Branch President for 2017-18 for the Vancouver Sun
Every Canadian citizen fundamentally deserves access to justice. According to the Canadian Forum on Civil Justice, in any three-year period, about 50 per cent of adult Canadians will experience at least one everyday legal problem — from property damage and personal injury to employment, consumer and debt-related issues. Among the most emotionally distressing are family related matters, involving relationship breakdowns, child custody and sometimes even violence.
In these most critical situations, people need the ability to access legal advice and representation. But what if they can’t afford it? All too often these legal problems go unresolved, which doesn’t just affect the families involved, but can spread through our communities causing larger social problems.
Legal aid administered through the Legal Services Society is vital to B.C.’s justice system because it ensures those who qualify for support find a resolution to their legal matters. However, legal-aid funding was severely cut by the B.C. government in 2002. A drastic degradation of service has affected the province ever since.
Today, current funding levels for family law cases only provide for emergencies that involve actual or threatened safety or violence issues, or the serious denial of access to children. A critical shortfall in funding exists for all other important family law matters — like child support and custody, spousal support and division of assets — even if the parties involved qualify financially for legal-aid support.
In our Provincial Court family division, about 40 per cent of hearings proceed with at least one party not having legal representation. When someone appears in court without a lawyer, the process slows down considerably. Courts are occupied longer and are less able to hear new cases in a timely manner. Unfortunately, many of these cases involve children. This inefficiency produces unfair outcomes for B.C. families and places them at a disadvantage within the justice system, in addition to coping with their specific legal matter. And when our most vulnerable citizens get caught up in the court system, they often end up in a downward spiral that leads to increased demand in other areas (social assistance, health care, etc.)
An adjacent concern is legal-aid lawyers who are finding it increasingly difficult to afford to act on behalf of British Columbians who qualify for and need this assistance. The “tariff,” or hourly rate, paid to legal-aid lawyers has increased once since 1991 — only one increase in a generation. Not surprisingly, the costs associated with legal representation haven’t kept pace with inflation.
Many dedicated and qualified lawyers simply can’t afford to provide representation in legal-aid cases. Often, the tariff is less than the cost of the lawyer’s hourly overhead. This makes it challenging for the Legal Services Society to attract and retain capable lawyers to assist low-income clients with resolving their legal issues.
In fact, when a lawyer represents a legal-aid client in B.C., she does so in return for much lower compensation than a government lawyer or a lawyer hired by government. In a child-protection case, for example, a legal-aid lawyer is compensated at around 60 per cent of what a government-hired lawyer may be paid. In numbers, that’s an hourly rate of $84 versus $135. This has real implications for the lawyer in being able to represent her client effectively.
Today, the Canadian Bar Association, B.C. Branch continues our urgent call for adequate funding to ensure basic legal representation in family law cases. Estimates show an additional $15 million can return family law services near to the levels in place before the 2002 budget reduction. With improved funding, the Legal Services Society can increase service to those in crisis and more effectively address crucial matters like family security and financial stability.
A tariff increase must be made hand-in-hand with additional funding, because even if legal aid receives greater support, it won’t matter if there are fewer qualified lawyers willing to take on legal-aid cases. Increasing legal-aid funding together with the tariff is a smart and necessary investment in British Columbians and the sustainability of our justice system.
We are encouraged by B.C. Attorney General David Eby’s commitment to prioritizing access to justice, including increased funding for legal aid. B.C. urgently needs a larger investment, particularly for family law cases. We look forward to working with the provincial government on these issues of vital importance to ensure a just, democratic and fair society in B.C.