Pro Bono Students Canada

The Bonkalo Report: Expanding the role of students in providing family law services

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By Daniel Simonian, PBSC Program Manager

Law students, trained and supervised by Legal Aid Ontario Duty Counsel, assist numerous clients at the Ontario Court of Justice at 47 Sheppard in Toronto, one of the country’s busiest courts.

In the recently published Family Law Services Review, the Honourable Justice Annemarie E. Bonkalo explores whether the delivery of family legal services in Ontario should be expanded to include legal service providers other than lawyers — such as paralegals, law clerks and law students. Pro Bono Students Canada provided input through written submissions (jointly with Downtown Legal Services, DLS, and the Community & Legal Aid Service Program, CLASP) and also by participating in Justice Bonkalo’s advisory body. We shared our experience and perspectives about the important work done by law students based on our award-winning Family Law Project (FLP), operating through 17 PBSC chapters across the country.

An expanded role for students

In her report, Justice Bonkalo explains the adverse impacts of self-representation and explores what can be done to make the courts more accessible for all families. Echoing numerous reports, she concludes that expanding the classes of providers for family legal services is a viable, albeit partial, solution. In Recommendations 17 to 19, Justice Bonkalo concludes that law students can play an expanded role in the delivery of family law services. Specifically, she recommends that the Ministry of the Attorney General, Legal Aid Ontario, law schools and the family justice community as a whole ensure continued funding for the FLP to safeguard its continued operation and foster its expansion.

We agree that students should be given an expanded role in the provision of family law services — all across Canada. PBSC has been a leader in the design and delivery of innovative legal services through student programming for 20 years. We have witnessed first-hand the benefits that our programs provide to clients as well as to the family justice system as a whole. Like Justice Bonkalo, we are impressed by the calibre of service provided by law students and by their commitment to pro bono work. With adequate resources, student programs like the FLP can play an increased role in providing meaningful access to the justice system.

Multiple solutions

PBSC supports Justice Bonkalo’s assertion that students can play an important role in redefining the delivery of legal services. The access to justice crisis requires not one solution but rather multiple and interconnecting solutions.

It is clear that exorbitant costs constitute a serious barrier for people trying to obtain meaningful access to justice. In her national study on self-represented litigants (SRLs), Professor Julie Macfarlane found that “the most consistently cited reason for self-representation was the inability to afford to retain, or to continue to retain, legal counsel.”[1] Given that the average hourly rate for a lawyer called to the Ontario bar in 2015 was $234, and $476 for a lawyer called before 1996,[2] it’s not surprising that many people cannot afford lawyers.

Self-representation also affects the efficacy of court processes. A survey of judges revealed that self-representation substantially lengthens the time required to resolve or manage a case.[3] Self-representation also impedes the ability of SRLs to bring about meaningful solutions to their legal issues. Family law rules and processes are notoriously hard to understand and manoeuvre through. Research has shown that SRLs do not typically fare well against a litigants represented by counsel.[4]

What FLP students can do

As part of the Family Law Project, students provide legal information, guidance on court processes, accompaniment for survivors of domestic violence, and assistance with form-filling and legal drafting. PBSC students provide legal support not only to low-income individuals but also to middle-income earners whose incomes exceed legal aid thresholds. Recent research shows that a significant proportion of court users and SRLs fall into income categories that exceed legal aid thresholds but nonetheless cannot cover legal fees for any sustained period of time.[5]

In 2016/17 alone, over 150 FLP students provided assistance to more than 1,600 clients and completed over 3,500 forms in Ontario. The impact is staggering. Judges, duty counsel and court staff regularly report that our program improves the flow of court proceedings and positively impacts the administration of justice more broadly. The feedback PBSC receives from clients is equally positive. In 2016/17, 97.5% of clients surveyed considered the assistance that they received from FLP students as “very helpful”. Almost all clients responded that the students were able to answer their questions (97.2%) and that they were able to help them (98.6%). Clients regularly comment on how students provide invaluable assistance by making the law easier to understand and the processes easier to navigate.

Law students have demonstrated that they are capable of increasing meaningful access to justice. Justice Bonkalo’s recommendation to expand the FLP and other student services is practical and much needed. Lawyers do not and cannot, on their own, provide all of the legal services needed. As a self-regulating profession and as advocates for justice, lawyers have an ethical duty to provide access to justice. We should therefore foster innovation and support expansion of student programs that allow members of the public to access pro bono services while also training the next generation of lawyers. As we expressed in our submissions to Justice Bonkalo, we are very proud of what we are accomplishing — but we believe there is potential to do much more.

[1] Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants – Final Report at 8, online: http://representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf [Macfarlane, Final Report].

[2] Rachel Birnbaum, Nicholas Bala & Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants” (2013) 91 Can Bar Rev 67 at 87.

[3] Birnbaum, Bala and Bertrand, supra note 3, at 81.

[4] Research conducted by Loom Analytics found that for motions, SRLs had 123 wins and 720 losses, and for applications, they had 9 wins and 56 losses. For trials, they had 30 wins and 84 losses. Birnbaum, Bala and Bertrand’s survey (supra, note 3) found that 65% of judges believe that SRLs generally have worse outcomes on economic issues, and 46% of judges are concerned about the effect of self-representation on child-related outcomes.

[5] Macfarlane, Final Reportsupra note 2, at 28.