#a2j2016

[talkjustice]

Access to Justice Week: Kym

Kym Sweeny is a third-year student at the Schulich School of Law at Dalhousie University. She is currently the Executive Director of the Dalhousie Student Advocacy Service at the Dalhousie Student Union. Kym is a single mother to her six-year-year old son and two dogs.

Note: This story does not take place in Nova Scotia but its themes are relevant across provinces, and it speaks to the need for change in each province.

When she was 20 years old and a full-time university student, Kym found out she was pregnant. Under the circumstances in which her pregnancy occurred, she wanted to ensure that the father would not have access to her or her child, among other conditions. Kym qualified for a legal aid certificate and went to seek out a lawyer who could help her navigate the family law system. 

At the time in Ontario, the legal aid system was certificate based, with private practices taking on legal aid clients with certificates. Lawyers who represented legal aid clients were paid $60/hour, much lower than normal rates. They were also limited in the number of hours they were allowed to work on the case, putting legal aid clients at a significant disadvantage. Given these restraints, lawyers might not be able to devote the necessary amount of time to a case. Being a broke student, Kym had no other option but to use the certificate.

She wanted to be completely prepped for court once her child was born, so she looked to retain a lawyer while she was still pregnant. She called around and one firm agreed to take her on. Her lawyer was a man in his fifties and throughout their entire first conversation, he seemed apathetic, uninterested and bored. Nonetheless, Kym explained her situation, as well as what she hoped to achieve by going to court. 

Right away, her lawyer was dismissive toward her requests. He told her she wasn't going to get what she wanted, asked her to compromise on quite a few of her wishes, and offered little reasoning and no alternative solutions. He did all this without showing a single ounce of compassion for her or her situation. Kym remembers starting to cry in the lawyer's office and eventually asking him how he could say such callous things. His reply: "Well, you're not my family."

After that experience, Kym decided if she was going to be adequately prepared, she would have to do her own research. She began combing through legal texts and reading through court decisions. She took precautions following her research. For example, she moved out of her city to a town three hours away, so her child would be born there and couldn’t be ordered back to the father's city of residence. As a law student now, Kym looks back and realizes just how uninformed she was on every aspect of legal research. But as an undergraduate student without any legal training, it was the best she could do.

Kym's case went to court after her son was born. Her lawyer gave her no information on what to expect and Kym still remembers shaking in fear while in the courtroom, waiting to begin. However, the judge was a woman – and she was compassionate. The judge interrupted the lawyer to ask Kym direct questions about her circumstances and what she actually wanted out of the case. 

Upon fully understanding Kym's situation, the judge then proceeded, in a roundabout way, to give her the court order she was hoping for. Kym recalls the judge saying things like "I think what your counsel meant to ask for was …" and "I'm sure your counsel meant to include …" while crafting a court order that has allowed Kym and her son the autonomy she wanted. She can still picture the big, empty hallway as she walked out of that courtroom, crying with happiness and relief.

Kym feels that having a female judge made all the difference to the case and ultimately, to her and her son. Sometimes she thinks about how their lives could be drastically different if there had not been a woman presiding that day. 

[talkjustice]

Access to Justice Week: Jessica

Jessica Dempsey is in her third year of a management degree at Dalhousie University. She is a transgender rights advocate and an advocate for people with permanent disabilities. She also holds a B.A. in sociology and hopes to continue on to law school.

Jessica's experience with the justice system lies mostly in the realm of human rights. After facing discrimination at Dalhousie University for being a trans woman, Jessica filed a complaint with the Nova Scotia Human Rights Commission (NSHRC). Even though NSHRC uses a restorative dispute resolution process, based upon the principles of restorative, rather than punitive justice, Jessica felt the system was still inherently biased toward those who held power. 

It was a struggle to find legal representation that would take her case. She called virtually every law firm in the Halifax area, but each declined to take her case because she did not have sufficient funds. Many firms never returned her calls, and the ones that did were dismissive of her case. In the end, she represented herself and had to do all the research normally done by professionals with extensive legal training – all while still in school. 

Jessica found the human rights complaints resolution process to be un-transparent and inaccessible. She felt disempowered by the legal might of the organizations she complained against, as if the system was not structured to account for the power discrepancies that arise out of human rights violations. To top it all off, the NSHRC included her male name in her case's paperwork, which she calls a clear example of contributing to systemic transphobia.

Jessica felt the NSHRC process and final decision to deny an investigation into her complaint were not fair or even adequate: the NSHRC Commissioner meetings were closed, with no reasoning given for a decision. As such, Jessica applied for judicial review of NSHRC's decision with the Supreme Court of Nova Scotia. At the Supreme Court, she felt as if she was finally heard. 

In contrast to the NSHRC, where she felt discriminated against and disempowered, Jessica described her experience at the Supreme Court as quite the opposite, with a fair judge and transparent process. For Jessica, the chance to present her case in a courtroom, with time and space to air her frustrations to an attentive judge, was incredibly empowering. Although the judge ultimately dismissed her application, Jessica was able to tell her story. The judge listened to her and carefully considered her version of events, and that was the major difference between the two experiences. One treated her as a person, the other as less than one.