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The Irony of the Bonkalo Report

Background of Law Students in the Family Courts

We all know the numbers in Ontario’s family courts. At least 60% of parties are unrepresented. They do worse than those with representation. The Family Court Rules are paper-heavy, with many deadlines, complicated financial calculations, and all kinds of forms to be drafted. Family lawyers will tell you it’s difficult enough for them to manage all of this, let alone an untrained individual.

Regrettably, the Family Courts in Ontario are an example of justice for those with money, and little justice for those without. This is one reason why Canadians are losing faith in our justice system.

Student clinics in Ontario, until 2014-15, had little involvement in the Family Courts. The only exception was Downtown Legal Services at the University of Toronto, which had students making appearances in the Ontario Court of Justice Family Court. However, in 2015, the judges of the OCJ put limits on the ability of law students to appear.

The 2015 Family Law Students at the Ontario Court of Justice Guidelines (the Guidelines) required that the supervising lawyer attend at all court appearances and set out limits to what a law student is permitted to do in family court.

The Bonkalo Report and Law Students

Justice Bonkalo was appointed by the Attorney-General of Ontario to “explore whether the delivery of family legal services should be expanded to include legal service providers other than lawyers, such as paralegals, law clerks and law students.”

In her look at law students in the Family Courts, Madam Justice Bonkalo found that:

In practice, there is significant variation in the extent to which judges allow articling students, employed law students and law students from clinics to appear in their courts. Some of the variation is by level of court, with more willingness to allow students to appear in the Ontario Court of Justice than in the Superior Court of Justice or Family Court. There also appears to be substantial variation in the approach to law students from judge to judge, as well as from one court site to another, even within the same level of court.

In 2014, LAO received additional funding from the Province of Ontario for family law services. Six student clinics applied for and received funding for three years to provide family law services, including my own clinic at Western Law. As Justice Bonkalo stated in her report:

There is considerable variety in how the programs are structured and the scope of services available. All of the programs offer information, advice and assistance to clients with family law issues including custody, access, child support, spousal support and restraining orders. They assist with summary advice, negotiation, and document preparation. Some of the SLASS clinics also represent clients at mediation and in court, where possible.

To qualify for SLASS assistance, prospective clients must meet LAO’s financial eligibility criteria. In recognition of the complex service needs of this client group, several of the SLASS programs have partnered with their university’s Faculty of Social Work to offer social work advocacy and counselling services to SLASS clients.

Students providing family law services at a SLASS clinic work under the supervision of the clinic’s family lawyer. All client contact and services provided by students are monitored and reviewed by the supervising lawyer. The SLASS family law programs are also subject to the provincial guidelines for law students appearing before the Ontario Court of Justice.

Justice Bonkalo made these findings on law students in the Family Courts:

While the SLASS and PBSC programs are based on different models, together they showcase the possibilities of law student programs. In addition to meeting important access to justice needs, these programs align with the national impetus towards expanding experiential learning opportunities within legal education. This push is driven by a number of factors, including student interest, heightened competition for articling positions and an increasing emphasis by Law Societies and Federations across the country on core competencies and skills. Students, law faculties, the Bar and the judiciary appreciate these programs.

Moreover, it is worth noting that one of the contributing factors to the family law crisis is the greying and shrinking of the family law Bar. These programs offer important pathways for law students interested in family law to gain exposure to and experience with the practice in an academically rigorous and highly supportive forum. With proper supervision, students can walk away from these experiences interested in practising family law and able to run a family law practise. There are so few family law opportunities in law schools and limited articling positions. These programs really provide a pipeline into family law practise that will be important for longer term solutions for the access to justice crisis.

Bonkalo’s Recommendations for Law Students

The Bonkalo Report went on to make two major recommendations (numbers 17 and 18) for law students and their work in the Family Courts:

The Ministry of the Attorney General and LAO should ensure continued funding to enable student programs like Pro Bono Students Canada’s Family Law Project and the student legal aid services societies to continue to operate and possibly even expand.

The Family Rules Committee should consider amendments to Rule 4 to ensure its consistent application across courts, particularly with respect to court appearances by students and to clarify when lawyer supervision is required. Where supervision is required, judicial permission should not be necessary.
The Irony

The student clinic family law services have been a success, and all six clinics had high hopes that, with demand continuing to rise in the family courts, the funding would be renewed. However, it was not to be.

LAO has suffered from a large deficit in the past year, and has been making cuts. Those cuts include the student clinic family law funding, which have not been renewed. Ironically, while Justice Bonkalo has urged more involvement of law students in the Family Courts, LAO has rendered her recommendations moot.

There is a glimpse of hope remaining. Some of the student clinics are continuing their family law programs on an interim basis, but this is not sustainable. At some point, the clinics will either end their family law programs or receive renewed funding.

Justice Bonkalo has shown the value of law students in the Family Courts. Will the Province of Ontario take her up on her recommendations?

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