In Canada we are fortunate to have access to a publicly-funded health care system to meet our medical needs when sickness or injury occurs. But what about access to justice when unforeseen legal issues arise?
The issue of “access to justice” most commonly refers to the inability of a growing number of people to obtain legal representation. In many cases, these are people requiring assistance with family law matters, including child custody and access rights and child support.
Having practiced in family law for almost fifteen years, I have seen many people struggling to afford basic daily needs while having to defend or advance a claim for child visitation rights or custody. Eligibility requirements for legal aid currently exclude many people whose income prevents them from obtaining private counsel. Many Islanders would be surprised to learn that in most cases under current eligibility rules, a family of two must have an annual gross (pre-tax) income of less than $25,000.00 to qualify for legal aid. This means that after taxes and deductions, single parents taking home approximately $1,500.00/month are expected to pay for a lawyer to advocate for their custodial rights for their children. It is simply not possible.
Lawyers and judges in PEI recognize the issue all too clearly. We see more and more people forced to represent themselves, unable to afford legal representation but declared ineligible for legal aid. Self-represented individuals are often unaware of the court process and the consequences and how to effectively put forward their position. In response to the growing trend, the legal profession and judiciary are doing their part to assist: more court time has been made available for family law cases; a pro bono clinic has been established (staffed by lawyers who volunteer their time); and most lawyers offer free consultations and significantly reduced fees to see a matter through court. In addition, the Community Legal Information Association, a non-profit registered charity, provides advice and information to the public free of charge. But these efforts are still not enough. It is past time for government to do its part. Although government has recently implemented the position of children’s lawyer and other measures to assist with high-conflict parenting situations, increased legal aid funding is the step that is required to improve access to justice by expanding the pool of eligible applicants.
Access to justice for legal matters involving the custody, access and safety of children should not force parents into a situation of having to choose between the necessities of life and effective representation. Low-income Canadians should not be expected to contend with this burden on their own any more than they should be expected to research and perform their own surgery. The task of addressing the issue should not be downloaded by government onto the courts and the legal profession or onto individuals with no choice but to be in the system.
A properly funded and accessible family legal aid system will help ensure that the right decisions are made to protect the most vulnerable in society – our children. When parents have access to the resources and advice needed, judges have the information required to make decisions in the best interests of the children involved. Where the safety of children is concerned, mistakes in a courtroom can be as tragic as mistakes on the operating table.
Matthew MacFarlane is Justice Critic for the Green Party of Prince Edward Island