The Ontario government recently released the findings of Justice Anne-Marie Bonkalo, in the form of the long-awaited Family Legal Services Review.
According to the government, the review was done because a “key priority for the Government of Ontario and the Ministry of the Attorney General is to focus on initiatives that promote fairness and access to the justice system for all Ontarians.”
However, in my opinion, the government went about this in the wrong way, by construing Bonkalo’s mandate far too narrowly.
In the terms of reference for the review — released in February 2016 — the government said it was looking to improve access to justice by seeking out “alternative and affordable models of family legal service delivery.”
It also identified an access to justice problem, where “the access to justice challenge is very apparent in the family justice system, where a large number of self-represented litigants struggle to resolve their personal family law disputes.”
In the same terms of reference, a mandate was spelled out for Bonkalo.
The mandate included identifying service providers, other than lawyers, who may be capable of providing legal services.
It also set out that Bonkalo identify legal services that could improve access to justice, in addition to those provided by lawyers.
The mandate also asked Bonkalo to make recommendations about what procedures, mechanisms, training and safeguards would be needed to allow service providers other than lawyers to offer family law services to the public.
Bonkalo’s report should have recommended transformational reforms to the family justice system.
Instead, by construing her mandate so narrowly, the provincial government ensured that it got a report that is a hodgepodge of proposed solutions.
When the Family Legal Services Review was released, the provincial Ministry of the Attorney General accompanied it with a press release that called for the expansion of unified family courts provincewide.
The reasoning behind this is that they would streamline the family court process by ensuring Ontario families have to go to only one court to resolve their legal issues, no matter where they live.
Objectively, this makes sense and has a sound rationale.
Further, in the report, Bonkalo made a significant number of recommendations that make sense and should be implemented immediately.
These include that court staff should be trained to provide as much assistance as possible to the public within the limits of their role and that lawyers should be encouraged to continue to offer and promote the use of unbundled legal services in the delivery of family law matters.
It also includes the recommendation that family court forms should be amended to indicate when a self-represented litigant has been provided with help drafting family law court forms by a trained legal professional.
However, some of Bonkalo’s recommendations, especially those relating to the role of paralegals, don’t make sense.
This is because they are premised on the idea that allowing paralegals to offer limited legal services in the area of family law is the panacea that will cure the ills affecting the family law system, as it is currently constituted.
Bonkalo was set up to fail.
She should have been given a mandate that would have allowed her to propose a potentially radical overhaul of the family law system or global solutions, which is what is sorely needed.
Instead, the provincial government asked for and received a report that proposes stop-gap measures when radical surgery is required.
These revelations are no surprise.
In 2013, the Canadian Bar Association’s Access to Justice Committee released a report called “Reaching Equal Justice: An Invitation to Envision and Act.”
This report proposed a complete overhaul of the civil justice system.
This report recommended that courts be reorganized so that, instead of becoming the option of first resort for litigants, they become the “main path to dispute resolution processes and [a centre for] referral to other services that can assist with the non-legal aspects of people’s problems, like mediation.”
“This re-centring of courts would involve transformation and overarching innovations,” said the report.
The report said courts should be a community hub where litigants can go to gather information, get referrals to the services they require and act as the last resort only if all other options fail.
“Effective triage and referral to appropriate services and processes is key to transcending the unrepresented litigant phenomenon and transforming courts to be fully centred in the broader civil justice system,” said the report.
“Re-centred courts will develop capacity for triage and referral that complements and works in coordination with the jurisdiction-wide and community based networks that facilitate everyday justice. . .”
Unfortunately, due to the narrow mandate provided by the provincial government, the Bonkalo report missed its opportunity.
The report could have recommended reforms to the Ontario family law justice system that would, if adopted, affect lasting and truly transformational change. And this change is sorely needed in order to solve the access to justice issue as it relates to family law in Ontario.
Now, one can only hope that those with the power to make changes to the justice system see the flaws in Bonkalo’s report and adopt the CBA’s recommendations instead.
Robert Shawyer is a senior family law lawyer practicing in Toronto and the principal of Shawyer Family Law and Mediation PC. He can be reached at [email protected].
