By Aidan Macnab for Canadian Lawyer Magazine
British Columbia will expand legal aid coverage and open a new family law clinic focused on survivors of intimate partner violence.
Thursday’s announcement of $29.1 million over three years and a new, multidisciplinary, trauma-informed family law clinic model resolves a seven-year constitutional challenge to the province’s family law legal aid system.
In 2017, the Centre for Family Equity, which was called the Single Mothers’ Alliance at the time, brought a challenge under s. 15 of the Charter’s guarantee of equality under the law and the access to justice requirement in s. 96 of the Constitution Act.
The “patchwork” legal aid delivery system was “inequitable and very arbitrary,” says Raji Mangat, executive director of West Coast LEAF, which brought the case to the BC Supreme Court. The province did not allow Legal Aid BC to run a deficit, which would cause an identical applicant to receive different funding levels depending on the time of year they applied. There were problems with financial eligibility, and clients were required to liquidate modest RRSPs and tax-free savings accounts to qualify. There were also caps on the number of hours that legal-aid lawyers could spend on general preparation, which meant clients did not receive the level of service required to stabilize or resolve their situation.
Mangat says abusive ex-partners would weaponize the system by running down legal aid hours.
“We're excited that we're moving in a new direction that recognizes that one-size-fits-all approaches don't work, that they don't treat people equitably and that they don't allow for people to actually receive the legal remedies and the stability that they need in order to move on from the end of a relationship.”
Changes to the income threshold will begin on April 1. The threshold will align with the higher between Legal Aid BC’s (LABC) 2022 eligibility thresholds or the most recent market basket measure from Statistics Canada. In 2025 and 2026, the threshold will be aligned with the most recent market basket measure with an additional two percent on April 1 of each year.
For applicants experiencing family violence, LABC will exclude assets from the eligibility calculation if the applicant is seeking help within six months of leaving an abusive partner. For other clients experiencing family violence, LABC will exclude certain accounts with a combined value of $30,000 or less from the calculation, including retirement and children’s education savings.
LABC will open the new family law clinic by the end of 2024. It will offer in-person and virtual services. LABC said it will “draw on community engagement and the expertise of other organizations in the sector to develop and implement operations at the clinic.”
The Canadian Bar Association, BC Branch (CBABC), who intervened in the Centre for Family Equity case, applauded Thursday’s announcement.
“More investment to help British Columbians fleeing violent relationships navigate the legal system is an important step in the right direction,” said CBABC President Scott Morishita. But he added that there is still a gap to be filled, as BC is the only province in Canada without legal aid for routine family law matters.
“Barriers to accessing legal aid in BC are very real. The announcement today is positive, and yet more needs to be done,” he said. “Low-income British Columbians receive legal aid if they are accused of a crime, have an immigration claim or need a restraining order because of intimate partner violence. But not if the issue is about income support to put food on your child’s table.”
The CBABC advocated for the province to do more to help low-income British Columbians with their family law cases during the 2024 budget consultations. The province will present the budget next week, and the CBABC said it is awaiting the result.