Single mothers' lawsuit against province's legal aid system heads to B.C. Supreme Court

  • August 23, 2022

Constitutional challenge asks court to weigh in on legal funding for women fleeing abuse

By David P. Ball for CBC News

The B.C. Supreme Court will hear arguments Tuesday from a group of B.C. single mothers who are challenging the province's legal aid system.

The case, launched in 2017 by the Single Mothers Alliance, argues the province's legal aid funding for women fleeing abuse is inadequate, and puts them further at risk.

A judge will hear the latest arguments in their constitutional case this week, as the province tries for a second time to have the lawsuit dismissed.

"Gender-based family violence is really a life or death issue," said the advocacy group's executive director, Viveca Ellis. "When women who are already marginalized and are experiencing poverty have to navigate that system on their own … they are very, very, very at risk."

Ellis is a single parent raising a 12-year-old son.

"My personal experience as a single mother does drive my passion for all of this work," she said in an interview. "It's a case of well-being, safety and truly access to justice. 

"Because without the representation and without the ability to navigate the system, they're really left outside of it."

Experts say the risks to women navigating the legal system alone include unfavourable case outcomes — such as decreased access to children — and exposure to further abuse from ex-partners by way of fact-to-face mediation, vexatious court filings, or encounters outside the courtroom.

Additionally, the time right after abusive relationships end is when the risk of violence against women is highest. 

'Access to courts cannot ... mean unlimited funding'

The province's Ministry of the Attorney General declined to comment, saying the matter is before the courts.

But in its legal filings, it argued the Single Mothers Alliance cannot speak for all single mothers' interests, because a "test case" of a constitutional issue requires an individual plaintiff to sue.

And the province said it provides adequate funding for the lowest-income single parents. However, it argued, not everyone needs a lawyer to get a fair outcome.

"The province agrees that it is an important policy objective to make reasonable access to the courts ... available to low- and middle-income British Columbians," B.C.'s lawyers wrote in a response dated May 14 last year, and "that single mothers have special needs in this regard."

But the attorney general and the Legal Services Society said "access to courts cannot practicably mean unlimited funding for legal representation."

"The province denies that mothers are, as a general matter, uniquely positioned to articulate and advance the interests of children in family law proceedings," they stated.

'Single mothers need to have their day in court'

West Coast LEAF, a women's legal non-profit pursuing the case for the Single Mothers Alliance, said those arguments are a "distraction" from systemic problems.

"The court system is itself being used as a weapon … where people's legal aid hours get used up," said Raji Mangat, West Coast LEAF's executive director. "These are really important issues and they need to be heard by a judge, and single mothers need to have their day in court."

Legal aid is offered to very low-income people in B.C., but has limited hours. It's administered by the Legal Services Society, which offers a Legal Aid B.C. website and phone line for such issues. 

"You can get a legal aid lawyer to represent you in your family law case in emergency situations," the website states, such as obtaining restraining orders. If budgets permit, lawyers may be provided "to sort out serious legal issues in cases with a lot of conflict."

Earlier this year, the province increased legal aid funding overall by roughly $8 million, and the income threshold for family law cases rose by nearly four per cent.

But for a single mother with one child, for example, the province cuts off legal representation at just over $29,000 net income — or $41,000 in some limited cases such as child welfare or criminal matters not going to trial.

University of B.C. law professor Margot Young says B.C. has among the lowest-funded legal aid systems in Canada, per capita.

She said the single mothers' lawsuit is a "key case" — one which, if successful, could have impacts in other provinces with similar barriers facing single mothers.

"The disparity in the ability to access representation results in the use of the legal system as another form of abuse of these women," said Young, the director of UBC's Centre for Feminist Legal Studies. "It would be deeply ironic if it were the case that this issue could only come if you had individual single mothers bringing it. 

"Because the whole case is about the inability of these women to access the legal system."