Duhaime's Law Dictionary

Indigent Definition:

A poor person; not penniless but in need and who has no financial support from any other.

Related Terms: Pauper's Oath

In People v Algeni, Justice Roy of the Colorado Court of Appeals iterated one of two common descriptions of indigent for the purposes of assigning state-paid counsel:

"[T]he term indigent for purposes of appointment of counsel is a term of art, that is, it has a very specific and highly technical meaning. Therefore, the fact that defendant and her husband said they were not indigent is, in our view, of very little or no consequence.

"A defendant does not have to be destitute; it is sufficient that he or she lack the necessary funds, on a practical basis, to retain competent counsel. The trial judge must consider the defendant's complete financial situation by balancing assets against liabilities and income against basic living expenses. Factors to be considered include whether the defendant has any dependents, whether he is employed, income from all sources, real and personal property owned, extent of any indebtedness (and) necessary living expenses...."

In Mathews v Mathews, another American appointment of a state-paid lawyer case, Justice John Gerrard of the Supreme Court of Nebraska wrote:

"[A] person is indigent if he or she is unable to pay ... attorney fees without prejudicing, in a meaningful way, his or her financial ability to provide the necessities of life, such as food, clothing, shelter, and medical care for himself or herself or his or her legal dependents.

"(An) indigent person is a person who, at the time need is determined, does not have sufficient assets, credit, or other means to provide payment of an attorney and all other necessary expenses of representation without depriving the party or the party's dependents of food, clothing, or shelter. [I]ndigent is a person who would be unable to employ counsel without prejudicing his financial ability to provide economic necessities for himself or his family."

In Canada, indigency is not (yet, anyway!, as of 2011) a qualifier for legal aid but it is referred to often in Canadian Rules of Court as a litigant tries to avoid having to pay filing fees because of, as she or he must allege, his or her state of indigency.

In Tan v Yukon, a case before the Yukon Supreme Court, Mr. Sa Tan applied to be exempted from paying Court fees related to filing a claim, an exemption which the Court rules extend to persons as follows:

"If the court, on summary application before or after the commencement of a proceeding, finds that a person is indigent, the court may order that no fee is payable to the Crown by the person to commence, defend or continue the whole or any part of the proceeding unless the court considers that the claim or defence discloses no reasonable claim or defence as the case may be, is scandalous, frivolous or vexatious, or  is otherwise an abuse of the process of the court."

Justice Gower accepted the plaintiff Tan's application for indigency status as follows, adopting some wording from other cases:

"Indigent is not further defined in the Rules of Court, but its meaning has been considered in a number of cases. Generally, it means a person who is not penniless, but who has such few resources that they may be considered needy ... possessed of some means but such scanty means that he is needy or poor.

The purpose of granting indigency status is to ensure that those with arguable cases, but inadequate finances, have access to justice.

"As I see it, the underlying rationale for the granting of indigent status is to ensure that no litigant will be denied access to the courts by reason of impecuniosity. … As I observed earlier, the concern of the court must be that no arguably meritorious case should be prevented from getting a hearing merely because a person is without the financial resources to carry on with the litigation.

"While the courts should not be overly rigorous in approaching such an application, it must be recognized that giving a litigant indigent status may be affording an unfair advantage to that litigant vis-à-vis the other party.

"As for Mr. Tan’s claim for indigency, I note that his affidavit material discloses a monthly income of $800, of which he nets approximately $750 after taxes. His stated monthly expenses equal his gross monthly income. He claims to have no assets and $2,000 in loans outstanding to friends. He has also affirmed that he does not have the ability to borrow money for the filing fees under the Rules of Court. Those fees would be $140 per claim. Thus, although Mr. Tan may not be totally destitute, he does appear to be a person of such scanty means that he is needy or poor and that the total of $280 in filing fees for both claims (indeed, even the fee for one claim) would effectively deny him access to justice."


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