Speakers Corner: Improving access laudable, but focus on real solutions

Improving access is a phrase you’ll hear bandied about a lot.

Most recently, the Ontario government announced it had turned its attention to improving access to the family law justice system. Justice Annemarie Bonkalo of the Ontario Court of Justice has been tasked with a review of family law service providers. 

As with any broad statement, it’s hard to oppose the concept of improving access to justice for Ontarians.
After all, isn’t improving access to justice a good thing?

However, as a family law practitioner, I suggest that Justice Bonkalo should also be tasked with considering practical solutions to improve the family law justice system.

Justice Bonkalo’s mandate is to review and to determine what, if any, family law services could be offered by alternative service providers such as paralegals, law clerks, and law students. Her review will also consider what safeguards, if any, should be put in place to ensure the accountability of those ASPs should they ultimately be allowed to offer family law services to the public. 

Some of the legal services Justice Bonkalo’s mandate identifies that could potentially be offered by ASPs are interviewing clients and filling out certain forms, both of which may be currently performed by ASPs.
The same is true for services such as research and drafting correspondence, which ASPs also currently do.

The only difference is that ASPs would now bear the final responsibility for the work product produced, as opposed to the current system wherein lawyers are ultimately responsible.  While this review may lead to innovative solutions, there are more steps that could be taken to make the family law justice system more efficient and accessible to all Ontarians. 

For example, a review of technological solutions (such as e-filing or automated child support updates) would undoubtedly streamline processes and increase efficiency. There are other areas for improvement.

All family law practitioners have experienced trials against self-represented individuals. There are many people, especially in custody and access proceedings, without the means to retain counsel. 

Custody and access proceedings are highly emotional for both parties. The involvement of an advocate provides great assistance in focusing evidence and providing a trial judge with the necessary information to determine the best interests of a child. 

Recent funding for legal aid is of assistance, but it remains a fact that, in Ontario, anyone with a full-time minimum-wage job fails to qualify for legal aid funding. 

An income only slightly above minimum wage disqualifies individuals from receiving the assistance of duty counsel. A moderate increase in the threshold for either program would increase the availability of funded services for tens of thousands of Ontarians. 

The courts have responded, possibly as a result of neither program providing sufficient access to legal services to Ontarians. 

The recent decision in Morwald-Benevides v. Benevides involved the trial judge appointing an amicus curiae — paid legal aid tariff rates by the Ministry of the Attorney General — for both the applicant and respondent.

In his decision, Justice John D. Keast of the Ontario Court of Justice noted the importance of parties in a complicated family law proceeding having the assistance of experienced counsel. 

The Ministry of the Attorney General appealed Justice Keast’s decision to the Superior Court of Justice, which will hopefully offer guidance as to whether amicus curiae may be appointed within the context of family law proceedings.

Justice Bonkalo’s mandate contemplates the involvement of ASPs in custody and access proceedings.
Custody issues, at the trial stage, require testing of both parties’ evidence to determine the best interests of the children. Justice Keast, in Benevides, noted that a lopsided situation (where one party has counsel and the other does not) is not of assistance to a trial judge. There is no guarantee that having an ASP involved in a custody proceeding will increase the quality of the evidence before a trial judge. The notion of an amicus, being paid at legal aid rates, to assist the court in custody proceedings where one or both parties are self-represented is a further solution worthy of consideration as a part of Justice Bonkalo’s review. 

Practical solutions to improve the effectiveness of the family law system would also improve access to justice for Ontarians. 

Financial disputes require different resources from custody and access disputes, but they proceed in the same manner. Many purely financial disputes could achieve an equitable resolution with a single contested judicial appearance yet these can take months to obtain.

The Ontario government’s proposed system to automate changes in child support is a solution that would remove a large volume of financial matters from the current family law system. This system is yet to be implemented with no suggestion of when it may actually occur. 

The introduction of e-filing documents would simplify and streamline administrative processes, freeing up resources for more complicated proceedings. A pilot project such as the current e-filing project in Small Claims Court could be attempted.

In my career, I have seen how complex and emotional family law proceedings can be. The introduction of ASPs may be of assistance to some, but they may still be too costly for others. All Ontarians should have access to timely legal advice and efficient systems to simplify and reduce the stress of a family law proceeding.

It will be easy to accuse lawyers opposed to ASPs as being protectionist. Rather, family lawyers who have dealt with and experienced proceedings with self-represented parties have potential solutions to make the family law justice system more easily navigated by all. Justice Bonkalo’s review could involve a consideration of these practical solutions developed by the family law bar to improve access to justice. 

The introduction of ASPs is one potential solution. I hope that all potential solutions — even those as radical as the introduction of amicus curiae to custody and access proceedings or faster judicial intervention for purely financial disputes — will be considered. My ultimate hope is access to the family law justice system will be improved for all.

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Jonathan Richardson has been practising family law and civil litigation for more than nine years, including trials involving self-represented parties. The views expressed are his own and do not represent those of any organization with which he is affiliated.