This case concerned New Brunswick’s obligation to provide legal aid in child wardship cases.
LEAF intervened before the Supreme Court of Canada, in coalition with:
- National Association of Women and the Law (NAWL)
- DisAbled Women’s Network Canada (DAWN)
The New Brunswick Minister of Health and Community Services was granted custody of J.G.’s three children for six months, and sought an extension of the custody order for another six months. J.G. wanted to challenge the application, which required a full hearing. She applied for legal aid, because shewas on social assistance and could not afford a lawyer for the hearing. Her application, however, was denied because legal aid did not cover custody applications.
J.G. then sought an order directing the Minister to provide her with funds for a lawyer, or for Legal Aid New Brunswick or the Attorney General to provide her with a lawyer. She also argued that the rules concerning Domestic Legal Aid violated her rights under s. 7 of the Charter. The motions judge dismissed J.G.’s motion, and a majority of the New Brunswick Court of Appeal upheld that decision. J.G. appealed to the Supreme Court of Canada.
The Coalition argued that the State’s failure to pay for legal representation for parents in temporary wardship cases was unconstitutional. The principles of fundamental justice required that parents, particularly primary caregivers, have the right to meaningful participation and the assurance of a fair hearing. To have meaningful participation, primary caregivers needed effective legal representation. The denial of state-funded counsel had a disproportionate impact on women, given women were typically primary caregivers and generally were the ones who required legal aid in family law matters.
The Supreme Court of Canada held that, for custody hearings to be fair and in accordance with s. 7 of the Charter, parents needed the opportunity to present their cases effectively. Three of the judges also emphasized the need to consider s. 15 of the Charter, and the disproportionate impact of the legal aidpolicy on single mothers.
The Court explained that, depending on the interests at stake, the capacities of the parent, and the complexity of the case, the government would, in some cases, need to provide the parent with a lawyer.In this case, J.G. required a lawyer in order to receive a fair hearing.
LEAF is grateful to Carole Curtis and Anne Dugas-Horsman, counsel in this case, as well as Carole Brown, Ottawa agent for LEAF.
Download the factum here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].