Access to Justice

From the Vancouver Sun: (Good history of legal aid in BC)

A ruling by the B.C. Supreme Court could set “a dangerous precedent, opening the floodgates” on legal aid spending by ordering Victoria to provide a lawyer to a family that earns too much, the provincial government fears.

Justice Elaine Adair last week confirmed the order that Victoria must provide the lawyer to two parents fighting to get their two kids back from the Ministry of Children and Family Development.

After a Sept. 15 ruling by Provincial Court Judge Kenneth Skilnick, a lawyer was provided to the family, who are known only by initials in court documents,

The attorney-general’s office appealed that decision, saying Skilnick expanded the definition of “indigency” and overly relaxed the financial eligibility requirements for state-funded legal help.

But the decision is really only the latest sign of a looming showdown between the government and the judiciary about what support the Constitution requires for the poor who find themselves dealing with the legal system.

B.C. lawyers have called for a full review of legal aid, which has lurched from crisis to crisis over the past decade of Liberal administration primarily because the government savagely slashed the plan’s budget on assuming office. The system has been trying to right itself since.

“The more comprehensive legal aid system which we once knew in this province is no longer recognizable as such,” James Bond, president of the Canadian Bar Association B.C. Branch, recently said. “The volatility of its funding model has led to unrealistic limitations on who can access legal services for what needs, and increased reliance on ’self-help’ materials for people who have to go to court unrepresented.”

Frustration is evident across the province both in the protests by community and legal groups and the withdrawal of legal aid services by some lawyers in Kamloops.

In this case, the family relied on a Supreme Court of Canada decision that declared continuing custody orders a threat to the constitutional rights of parents.

The court in that New Brunswick case spoke about a duty on government to provide counsel for “indigent persons” but it did not elaborate on who was indigent.

The attorney-general’s office in this case said Judge Skilnick decided that question incorrectly and he was wrong to conclude the parents were indigent.

Justice Adair disagreed.

The children were apprehended in 2008, have been in custody ever since and the government now does not want to return them.

The parents were refused legal aid because their income exceeded the financial eligibility guidelines.

They say they have a net family income of $3,518 per month and expenses of $3,390. The cutoff for a family of four is a net income of $3,050; for a family of two it is $1,950.

The government maintained the couple were a family of two because the children weren’t with them. And, it showed some flexibility by offering to pay for a lawyer if the parents contributed.

The parents said they had no extra money to do that and asked the court for help.

Justice Adair noted that Victoria’s detailed 34-page written argument and a two-volume brief containing almost 50 authorities (cases, legislation and secondary sources) “reflects the dangers [the government] perceives in the prospect that Judge Skilnick’s decision will be followed, with the potential result that a more relaxed test of financial eligibility will begin to be applied . . . .”

She acknowledged its warning that such a ruling could create a precedent and open the floodgates.

But she didn’t buy the argument and upheld Judge Skilnick’s order.

In all of this, the kids have languished in care — it’s taken a year of squabbling over the family’s ability to pay for a lawyer before anything else could be resolved.

A hearing on the real issues is not set to begin until September and continue in November.