Women need lawyers too.

• Author: Christopher, Catherine

Women involved in family law disputes in Canada often face a unique set of challenges obtaining access to justice, both in disputes with the state and in private disputes. This is amply illustrated by the case of New Brunswick (Minister of Health and Community Services) v. G. (J), a decision of the Supreme Court of Canada rendered September 10, 1999.

New Brunswick Legal Aid refused to grant G. coverage for a lawyer on the basis that legal aid coverage was not being extended to litigants involved in temporary custody disputes. G. then brought an application for an order directing the Minister to provide her with sufficient funds to cover the reasonable fees and disbursements of a lawyer for her, or directing that Legal Aid or the provincial Attorney General provide her with counsel. The basis for G.'s application was that her right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms was infringed by the Legal Aid's refusal to provide her with counsel (See discussion also in "A Right to Fairness", p. 13).

The Honourable Chief Justice Lamer wrote the majority decision and held that the state had an obligation to provide G. with a lawyer and failure to do so contravened her rights under section 7 of the Charter. The Supreme Court of Canada outlined the procedure to be followed by the Court in the future, as follows: "The judge at the hearing should first inquire as to whether the parent applied for legal aid or any other form of state funded assistance. If the parent has not exhausted all possible avenues for obtaining state funded legal assistance the proceedings should be adjourned to give the parent reasonable time to do so.... If the parent wants a lawyer but is unable to afford one, the judge should next consider whether the parent can receive a fair hearing through a consideration of the following criteria: the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent. The judge should also bear in mind his or her ability to assist the parent within the limits of the judicial role."

Section 7 of the Charter must be considered with the gender equality provisions of section 15 and section 28 of the Charter. The comments of the Honourable Madam Justice C. L'Heureux-Dube, on behalf of herself plus Justices McLaughlin and Gonthier, are noteworthy. She stated that "This case raises issues of gender equality because women, and especially single mothers, are...