National Crime Victims Awareness Week

Violence, Women & Access to Justice

by Annie Zhang

Since August 2011, I have had the privilege of working as a legal advocate at Battered Women’s Support Services (BWSS), where I provide legal information, support, and advocacy to women navigating our complex legal system.  Our mandate is to provide free and confidential support services to women who have experienced violence in an intimate relationship.  My primary focus is to assist women with family, immigration, criminal, child protection and poverty law related issues. 

Through my work with BWSS, I have assisted women in understanding legal concepts, strategizing for their legal cases, preparing court paperwork such as affidavits, pleadings, and other applications, accompanying them to court and other legal appointments, and advocating for legal aid.  As a result, I have intimately experienced the intersection of barriers women face in their pursuit of justice, especially for women who are survivors of violence. 

Access to justice is an ever-pervasive issue.  Since the inception of BWSS thirty-two years ago, we have fought against women’s barriers to accessing justice and struggled to meet women’s need for proper legal representation.  The cuts to legal aid have ensured that despite the fact that the vast majority of women accessing our services meet their selection criteria (family violence, safety issues, immigration proceedings, low-income, barriers to self-representation, etc) many of them are denied coverage.  Many women request our services in submitting appeals for reconsideration, which may assist them in getting approved upon re-assessment.  Still, that requires yet another hurdle to bypass during an extremely stressful and dangerous period of their lives.

At BWSS, we understand that the most dangerous time for a woman in an abusive situation is when she is leaving the relationship.  The risk to her safety escalates, and she faces many pressing considerations, many of them legal in nature: How does she get a protection order?  What will happen in regards to child custody?  How will she support herself and her children?  What does this mean for her immigration status?

Often the woman also finds herself in a battle against time.  Her ex-partner may have already applied in court for a custody order before she even had the chance to catch her breath.  Orders can be granted on an ex-parte (without notice) basis in cases of emergency, which means she may not know that an action has been started against her until she receives the court order.  Her ex may be claiming that she has abducted the children, and/or involve the Ministry of Children and Family Development (MCFD). He may have cut off her access to family funds, and begin hiding/removing assets for when matrimonial property division becomes an issue. He may be using resources to track her down, with retaliation in mind.

The legal issues faced by women accessing our services are rarely confined to family law.  More often than not, the woman faces an intersection of legal systems.  She may not have status in Canada and wonder about the implications of her ability to remain once she leaves the relationship.  She may be in dire financial straits, and need immediate assistance, whether through a family court support order or income assistance (which is in itself a complex process).  She may also be involved in the criminal justice system, whether it is her abuser being charged or herself due to her abuser phoning the police on her. 

Each legal system is multi-faceted, variable, and often plain incomprehensible to the average woman with no legal background.  It is even more inaccessible to the woman who does not speak English or French as her first language. Without legal representation, she may be at a complete loss of where to begin.  Often, the woman finds herself disadvantaged economically compared to her more financially secure ex-partner, who is able to afford counsel to represent him in court.

Annie Zhang and friends

Lawyer fees for family law cases rarely dip below $200/hour.  The amount of time the lawyer needs to spend on her case will depend, among other factors, on the complexity of the case and the ability between the parties to settle. Settling is rarely an option – at least, rarely a fair option – when there has been abuse within the relationship and an imbalance in power between the parties.  Once a case goes to trial, the legal fees rack up exponentially.  A trial involving many witnesses, expert reports, and other pieces of evidence can take many days and thousands upon thousands of dollars.  The legal processes leading up to trial, such as commissioning a section 15 report, conducting an examination for discovery, or preparing for the case, are also extremely costly. 

For the woman denied legal aid and unable to afford the costs of legal representation, she is often left with no choice but to self-represent.  Even with legal aid, the hours with her lawyer are limited and nothing stops the abuser from pursuing delay tactics or incessantly bringing frivolous suits in order to use up her allotted ration of legal aid.  She will need take on the role of self-advocate and learn the entirety of the family court process – what forms to fill out, what language to use, what evidence to tender, what time limits are in place, how to write an affidavit, how to conduct herself in court – very quickly.  She may be able to obtain the assistance of advocates, duty counsel, or pro-bono clinics, but her hours with them are also limited and she will need to prepare a lot of the work herself.  

She will also not be able to obtain legal representation from those services, and needs to prepare herself for the reality of facing her abuser alone in court, who is often represented by an experienced lawyer.  Her evidence may be rejected because it is not presented in proper form; she may not understand the legal language or process. In short, she will be extremely disadvantaged by not having knowledgeable counsel to properly advocate for her case.

The stakes are high.  She may lose custody of her children. She may not get the restraining order she desperately needs for protection. She may not receive adequate support in order to sustain herself and her children.   She may not receive a fair property distribution. The abuser may get away with using y
et another avenue, the legal system, to further perpetrate the abuse.  The court decision will ultimately have a deep impact on the rest of the woman’s life, as well as the lives of her children.  Justice is considered to be served, but a dish served cold for her. 

As an advocate, it has been extremely dispiriting to see, first-hand, the devastating impact the legal process has had on women and their children.  Women who continue to struggle in poverty, attempting to feed and shelter themselves and their children in an expensive city, while wondering whether their next support payment will arrive in the mail.  Women who, bound by court orders, must force their unwilling children to spend time with an abusive parent. Women who have no choice but to continue to maintain contact with their abusers in a “co-parenting” relationship, through a legal system that does not yet recognize spousal violence as meaningful to the best interests of the child, and presumes joint custody as the default ideal. 

We’d all like to believe that the legal system unfalteringly grants justice to those who ventures through its ivory gates, but whose justice does it serve? Those who have power and privilege in society, with resources to afford the best possible legal representation to present their case in the best possible light?   If access to justice is correlated with access to money, then what does that mean for women accessing BWSS, who are often among the most underprivileged in our society? The women struggling with an intersection of disadvantages borne of racism, classism, sexism, ableist and more?  

I write this piece in contribution to the National Crime Victims Awareness Week, to share with you some of the experiences and barriers faced by women accessing legal services at BWSS.  Thank you for reading.

– Annie Zhang, BWSS Legal Advocate