Why Family Lawyers Should Consider Getting Behind the Bonkalo RecommendationsNSRLP
Justice Bonkalo’s long-anticipated report and recommendations on the future of family legal services in Ontario has provoked an outpouring of reaction from the Family Bar.
Most of the response has been negative, expressing reservations, alarm and even fear. We should not be surprised by this, given the tenor of the submissions made by a number of leading family law organizations to Justice Bonkalo before she finalized her Report. The opposing voices that defend the status quo – and reject Bonkalo’s proposals – will intensify in the coming weeks.
However I know that there are family law organizations (for example, the Family Law Institute of Ontario), as well as individual family practitioners (such as Hilary Linton, a stalwart of the mediation community) who support many, if not all of the recommendations..
Unfortunately, we are seeing banner headlines, as well as statements circulating on Twitter, that present arguments that are contradicted by or unsupported by the empirical evidence.
Whether you are….
- A family lawyer who is alarmed by Bonkalo
- A family lawyer who is weighing the professional costs of publicly supporting Bonkalo, a currently minority position in a profession that expects conformity, or
- If you are simply on the fence and unsure
- There is a Crisis of Access to Family Legal Services in Ontario
Most Ontarians fall between two extremes: Legal Aid coverage (limited to those making under $12,000 per annum as a single person) and those who are able to afford a lawyer for full representation (at an average hourly rate of around $350). Study after study (in Canada, the United States, as well as other common law jurisdictions including England and Wales, Australia, New Zealand) have shown that affordability is the major reason for the shocking number of those coming to family court without counsel (57% across Ontario, rising to almost 80% in downtown Toronto).
Something has to be done about this problem, which is creating injustice and trauma for individual Ontarians, further pain for families (including for their children) who are in transition through break-ups, and that is leading to a devastating decline of faith in the fairness and efficacy of the Ontario family justice system.
- Legal Aid is Not Rich Enough to Fix the Problem
There is a disturbing yet widespread belief, which can only be described as naïve, that more funds for public assistance can take care of this problem.
Do the math (as many have, including legal economist Gillian Hadfield).
It is unrealistic to claim that public funds can meet the cost of providing full representation to those who need and cannot afford (or having expended their available funds, can no longer afford) legal counsel in their family matter.
The sheer volume of those needing help would bankrupt the Ontario government – assuming current hourly rates for Legal Aid and that LAO continues to proffer the feast or famine menu – full representation or nothing (see below).
There is a clear case to be made for increasing the budget of LAO (which received an addition $86 million between 2014 and 2016 but is still running a deficit and unable to respond to the level of need). Full representation services for victims of domestic violence – who make up a significant proportion of those seeking public assistance – should be a priority. An important and sensible suggestion is to increase funding for Family Court Support Workers. These individuals are not lawyers, but the assistance and moral support they provide to clients is often cited as invaluable.
There is also a case for using the existing and enhanced funding differently, creating more flexibility and value-for-money in the way the services of a Legal Aid lawyer are made available in some family cases. NSRLP has been lobbying LAO since 2015 to consider offering limited (say 10-12 hour) “coaching certificates” as an alternative to full representation in selected cases, in order to make the available public funds go much, much further. A stronger focus on using the skills of a lawyer to advance settlement is critical to every aspect of justice reform.
But it is very important that those who oppose Bonkalo’s recommendations do not take cover behind the misplaced belief that the current A2J crisis comes to a happy ending solely via the public purse.
- There is No Evidence to Support the Assertion that Paralegals are a Penny-Wise, Pound-Foolish Solution
This claim is circulating widely on social media.
True, there is no data to prove that paralegals would reduce overall costs to Ontario family clients. There is no data on this because it has never happened (paralegals cannot presently and never have offered family legal services in Ontario, and there are no data sources I, or my colleague Noel Semple, who knows better than anyone, can find) on this question in other jurisdictions.
But the facts are these. Lawyers charge an average of $350 an hour (some a lot more). Paralegals charge an average of $80 an hour. Some lawyers claim that paralegals would take so long and make such a mess of family files that this four-times difference in hourly rates would be erased.
I guess that’s possible in principle – but its pretty hard to imagine that a properly trained and licensed paralegal (as per Bonaklo’s recommendations) would commonly display such a level of incompetence in accomplishing tasks such as drafting documents and filing court forms that many quasi-paralegals (“legal assistants”) already routinely undertake under the supervision of a lawyer.
Even if some members of the Family Bar have convinced themselves of this speculative, catastrophic argument, it seems unlikely that the public will be convinced by it when faced with a choice between paying $350 an hour for a lawyer (still their choice), or $80 for a licensed paralegal.
- The Family Bar Needs To Participate in Change, Not Ward It Off
None of us like change. After five years of conversations with hundreds of members of the Bar and the judiciary about the self-represented litigant phenomenon, I understand and empathize with that. For all of us, BAU (business as usual) is almost always preferable to uncertainty and uncharted territory.
But something has to give here. Legions of the public are losing faith not only in the justice system – as even the most competent and hard-working SRLs are tripped up by the impossible complexity of court procedures that take advantage of their powerlessness – but also in the legal profession. Far too many of those confronting domestic violence are being left defenceless, without the legal help that they need.
If the public hears only opposition to changes that offer more opportunities for more affordable access to justice, they will hold that against lawyers. The public needs the Bar (all parts of the Bar, not just beleaguered family lawyers) to wake up and get with the program here. A profession that is permitted to self-regulate in the public interest cannot be accessible to only a tiny fraction of the public.
This is the status quo, but such favouritism will not be tolerated indefinitely.
The first three of Bonkalo’s recommendations urge the Family Bar to embrace the idea of unbundled legal services and legal coaching, services that offer the potential for lower overall costs and – just as important – greater client control over those costs. Justice Bonkalo writes:
“Lawyers should consider innovative opportunities to offer unbundled legal services, including affiliations with other lawyers and online platforms. …(T)he Law Society of Upper Canada and LawPRO should continue to support the expanded use of unbundled services and …tools to address the liability concerns…”
In relation to “legal coaching,” where the lawyer offers coaching to a primarily self-represented client who handles as much as they can of their own case, while paying for the guidance that they can afford, she continues:
“The legal profession should support the development of legal coaching and offer continuing legal education opportunities to ensure lawyers are equipped to offer these services…(T)he Law Society of Upper Canada and LawPRO should consider providing incentives for lawyers to make legal coaching an integral part of their practice.”
I know that there are family lawyers out there quietly offering unbundled and coaching services to family litigants. Our National Database of Professionals Assisting SRLs is designed to help these dedicated professionals to step out of the shadows and offer these services openly, publicly and proudly (and explain to skeptics that they can make a living this way, do not get sued, and enjoy enhanced job satisfaction and relationships with their clients).
In the wake of Bonkalo, there is a great opportunity for the Family Bar in offering reconfigured services and rethinking service goals.
As a family lawyer, what can you do?
- If you do not already offer unbundled legal services, read more about them here, and watch our 4 minute video featuring the endorsements of Chief Justice Bob Bauman of British Columbia, Chief Justice Michael MacDonald of Nova Scotia and Associate Chief Justice Marrocco of the Ontario Superior Court. Please consider beginning to offer clients at least unbundled services, as well as legal coaching.
- Consider joining our National Database of Professionals Assisting SRLs so that your new clients can find you. You will find yourself in good company – over 100 lawyers are now part of the National Database.
- Support (subject to any number of specific recommendations about the content and quality of the training program, which will be crucial) the introduction of licensed family paralegals. None of the proposed changes are going to happen in a rush – there will be debate and consultation followed by the development of appropriate training for licenced family paralegals. If you have views about the content of this training, become part of making this work.
- Consider talking to your colleagues about the Bonkalo Report and ask them to read her recommendations with an open mind. Encourage them to inform themselves (perhaps share this blog?). Suggest that they talk to their own clients, in order to get a sense of what the public wants and expects from the Family Bar.