Access to Justice: Highs and Lows of Pro Bono Week

By Thomas Cromwell

The last week of October is Pro Bono Week, a global celebration of the pro bono ethic in our profession. Across Canada and around the world, thousands of legal professionals provide their services without cost for the public good. In Canada, where there is a wide and growing gap between the need for legal services and people’s ability to gain access to them, pro bono is a part of the effort necessary to fill that gap.

We entered Pro Bono Week on a wave of optimism and achievement generated by the Seventh National Pro Bono Conference held in Vancouver on Oct. 4 and 5. The packed agenda included presentations by the chief justice of Canada, the chief justice of British Columbia, the attorney general of British Columbia and the president of the American College of Trial Lawyers.

The message from the top was clear: pro bono work by lawyers is part of our professional responsibility and its importance to the welfare of our community cannot be overstated. The large attendance at the conference and the lively engagement evident in all of the sessions generated optimism and enthusiasm.

While we can and must do more, there is much to celebrate.

But not all of the news about pro bono is good. Pro Bono Ontario (PBO) has indicated that in December it will have to close its court-based programs — two in Toronto and one in Ottawa — for want of funding for the administrative support essential to running these programs. PBO says that each year, volunteer lawyers help more than 18,000 clients in the civil, non-family justice system and, at the same time, reduce delays in the courts’ handling of these matters. An evaluation of the programs concluded that they provided a 10:1 return on investment. In other words, the public purse saved $10 for every dollar in funding. But that is apparently not enough to persuade potential funders to inject the modest resources needed to assure that these programs continue.

David W. Scott, one of the “parents” of these programs, has for many years spent a morning each month at the Law Help Centre at the Ottawa courthouse. He told me that during his October shift, he saw five people:

  • a single mother who is being pursued by a government department for support payments;
  • a friend of an Arabic woman who speaks no English who is defending herself from a landlord’s claim for rent;
  • a young man on parole who was the victim of a fraudulent claim when he was incarcerated;
  • a young mother who was being sued for return of employment insurance; and
  • a woman being sued for alleged non-payment of taxes.

Through the court-based program, David was able to provide modest but critical help. The closure of the Law Help Centre will mean that people like those who David saw — people in their thousands — will be left to their own devices. The need for these services is obvious and compelling.

The willingness of legal professionals to provide these pro bono services has been demonstrated. The business case for doing so seems unanswerable. But even this is not enough to save these programs.

Scott says that he is heartbroken. The rest of us should be ashamed. Who can seriously contend that we cannot find the modest resources needed to maintain these valuable services? If we wanted to, we would.

 

This article originally appeared on The Lawyer’s Daily on November 5, 2018. It is the twelfth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

Access to Justice: How it’s looking on the ground

by Thomas Cromwell

West Coast LEAF is a legal advocacy group whose mandate is to use the law to create an equal and just society for all women and people who experience gender-based discrimination. In other words, it is an organization dedicated to access to justice writ large. I was able to speak to Zahra Jimale, West Coast LEAF’s Director of Law Reform about its work, her conception of access to justice and, most importantly, how successful we’ve been in improving access to justice on the ground. Here is what she told me.
 
TC: Tell me about your role at West Coast Leaf

ZJ: In collaboration with the community, West Coast LEAF uses litigation, law reform, and public legal education to make change. We do our work in six focus areas: access to healthcare; access to justice; economic security; freedom from gender-based violence; justice for those who are criminalized; and the right to parent. As the Director of Law Reform, I provide leadership, strategic planning and project management with respect to policy and law reform in all of the six focus areas. I work with our team to develop the organization’s position statements and recommendations on implementation and reform of policy and law. I bring to this role my experience of founding and operating an independent family law practice where I provided a variety of family law services, including unbundled legal services, legal coaching, collaborative divorce, and mediation.

TC: What do you perceive as the biggest access to justice gap?

ZJ: There is a significant gap between what the public expects of the justice system and what the justice system delivers and is currently capable of delivering.

There is lack of deeper understanding of what it means to truly access justice; that justice is not simply achieved by accessing, but by obtaining just outcomes in an efficient and cost effective manner, regardless of the type of dispute resolution process that is pursued, be it court or alternative dispute resolution processes; that meaningful access to justice requires recognizing and dismantling the various barriers faced by many, and in particular, that there are intersecting barriers faced by certain populations because of historical and/or current systemic challenges. The complexity of the system, long delays, lack of access to affordable and timely legal advice and representation, and lack of adequately funded legal aid system continue to widen the gap.

An urgent systemic change is required to reduce these barriers and an immediate action must be taken to address the growing access to justice crisis, especially in family law. Where individuals are unable to access lawyers due to prohibitive costs and lack of public service, they are left with no choice but to either forego rights and interests, including the protection of their children’s rights and interests, or represent themselves without appropriate legal advice and/or representation. This is why West Coast LEAF and a team of pro bono counsel is representing the Single Mothers’ Alliance and an individual plaintiff in an ongoing constitutional claim against the B.C. government and the Legal Services Society for failing to provide adequate family law services, in particular to women fleeing violent relationships.

Zahra Jimale

TC: There is a lot of talk about the access to justice problem, but do you see signs of improvement on the ground?

ZJ: Unfortunately, we are far from seeing meaningful access to justice. Although there has been a lot of talk and some action, particularly in diverting disputants away from the court system and litigation generally, the justice system remains inaccessible to those that need it most. The barriers to accessing justice and the significant adverse consequences, including safety concerns for those fleeing violent relationships, are ongoing. Even though nearly half of Canadians over the age of 18 experience at least one civil or family law problem over any given three-year period, justice system funding continues to be woefully inadequate.

TC: If you could do any one thing to improve access to justice, what would you do and why?
 
ZJ: I would change the way we perceive access to justice. I believe once we recognize access to justice as a human right that is fundamental to the protection and promotion of the rule of law, we will then be forced to take the necessary action to ensure that it is meaningful and protected. This includes increasing the public’s knowledge of the justice system and how to manage and resolve legal problems; making available cost effective and appropriate avenues for resolution; providing meaningful access to resources and services; ensuring adequate funding of legal aid; and maintaining appropriate judicial complements and effectively functioning courts.

This article originally appeared on The Lawyer’s Daily on August 13, 2018. It is the eleventh article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.
 

Access to Justice: Diana Lowe on support for families as they restructure

by Thomas Cromwell

Alberta has been engaged for several years in an ambitious family law reform effort. I spoke to Diana Lowe, co-lead of the Reforming the Family Justice System (RFJS) initiative, about what they have been doing and what’s ahead. Here is the second part of my interview with her.

TC: What main innovations have been introduced and how are they working?

DL: The most significant change that has taken place, is a shift in the mental model or culture in the family justice system, away from improving access to lawyers, law and adversarial processes, and instead to a focus on family well-being through services that support families as they experience the pressures of restructuring. We are encouraging awareness of this shift by all participants in the family justice system, including families, and encouraging alignment with the Theory of Change in policy and programs.

We are beginning to see shifts in systems, policy and practices including the Court of Queen’s Bench that has adopted the Theory of Change in its Strategic Plan and is beginning to take action to put this into effect. Resolution Services in the Ministry of Justice and Solicitor General is developing a pilot to refocus the work of frontline staff as “justice system navigators.” These staff will be trained in brain science, and will develop maps of community services so they can assist families to obtain the supports they need for their social, relationship, parenting and financial needs.

This pilot is a collaboration with the County of Strathcona Family and Community Support Services (FCSS) and if successful, will be expanded to include FCSS organizations throughout the province.

Alberta has submitted a joint proposal (by the Alberta Ministry of Justice and Solicitor General, the Court of Queen’s Bench and the provincial court) to the federal minister of Justice, for the creation of an Alberta Unified Family Court. The proposal embedded the RFJS Theory of Change, supporting the use of services to assist Alberta families to access supports they need to help develop resilience, and to resolve disputes away from the adversarial processes of courts as much as possible.

TC: How is the experience of a family going through separation and divorce different from what it might have been five years ago?

DL: While the RFJS is still underway, there are many things that parents can do already to help them and their children thrive as they restructure. As co-convenor Justice Andrea Moen noted at our recent Collaborator Workshop, collaborative family professionals were out front in understanding that co-operation and collaboration between parents is essential for the health of the family and of the children. They led the way by creating teams of professionals to assist families.

The RFJS is aligned with the collaborative approach both to help families avoid adversarial court processes and to work out the restructuring of their family. Their approach is a model which ensures that families receive the kinds of relationship, parenting and financial supports that they need, and families can be guided by the model that collaborative professionals have created for supporting healthy families.

There are many different supports that are available to assist families, including collaborative family practitioners, co-parenting experts, wellness coaches, grief counsellors, financial advisers, step-parent supports, and of course mediators and lawyers. Examples of these supports are published regularly in Divorce Magazine. Families can use technology tools that encourage parents to work together to achieve better outcomes, including coParenter and Undo.

Supports for families are also available in most communities in the province through Family and Community Support Services partnerships between the provincial government and municipal governments; at Parent Link Centres; and through Triple-P Parenting Resources.

The RFJS is supporting the Ministry pilot in the County of Strathcona that will see families seek these supports, as part of our goal for better outcomes. As families are encouraged to seek out these supports early on in their decision to restructure, they are better able to deal with the emotional, parenting, relationship and financial challenges that commonly occur upon separation and divorce, and to avoid tangling these issues into legal processes.

TC: What’s next?

DL: Our Outcomes Framework identifies our key priorities for the coming year as:

  • Working with the legal profession to encourage brain science education by family lawyers, and identifying implications for shifts in ethical responsibilities and practices of family lawyers.
  • Working with the courts to ensure they are familiar with the Theory of Change, and are encouraged to align court processes with it.
  • Continued work with the Ministry of Justice and Solicitor General on the pilot with FCSS, and other family justice initiatives.
  • Helping to enhance the public understanding that “parents fighting about their children causes harm,” and to provide information about supports to improve resilience and well-being of family members.
  • Working with frontline service providers and supports for families, to empower them to provide the social, relationship, parenting and financial supports that families need when they’re restructuring.
  • Working with other ministries (Health, Education, Community and Social Services, Children’s Services) to share the Theory of Change and seek alignment with it, and the integration of services for families, in order to help families thrive.

This is the second of a two-part series. Read part one here.

This article originally appeared on The Lawyer’s Daily on July 30, 2018. It is the tenth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

Access to Justice: Diana Lowe on the theory of change

by Thomas Cromwell

Alberta has been engaged for several years in an ambitious family law reform effort. I spoke to Diana Lowe, co-lead of the Reforming the Family Justice System initiative, about what they have been doing and what’s ahead. Here is what she told me.

TC: What was the impetus for Alberta’s family law project and what are its objectives?

DL: The Reforming the Family Justice System (RFJS) initiative was inspired by two very different but important pieces of work. The first is new scientific knowledge about brain science and brain development, which includes understanding the impact of toxic stress and how it is harmful to children’s brains. This is the kind of stress that occurs when families have unresolved disputes and children are exposed to fighting between parents. Brain science tells us that fighting between parents actually harms the development of children’s brains. The effects are physical as well as mental, impact the child throughout their life, and in fact can be intergenerational.

The second is the recommendations in the reports of the national Action Committee on Access to Justice in Civil and Family Matters (Action Committee). The Action Committee is made up of leaders from across Canada, and published five reports in 2013, which are available online here.

The name we gave to this initiative is “Reforming the Family Justice System,” but we increasingly refer to it as “reimagining” the family justice system. In short, the RFJS is aimed at wholesale systems change. The change we’re seeking in the RFJS is not the traditional focus of access to justice initiatives, which aim to improve and increase access to legal processes and services. Rather, we seek well-rounded solutions that support families as they restructure, and most importantly, ensuring that children are safe and able to thrive even as their families are changing.

TC: Has the initiative identified the main problems that need to be solved?

DL: We’ve developed a Theory of Change that guides us in our work. It recognizes that “family justice issues are primarily social, relationship and financial, that contain a legal element.” By this, we understand that we need to untangle social, relationship and financial issues from legal issues, and create paths to empower families to obtain the social, relationship and financial supports that they need to address these problems, outside of adversarial legal processes and away from the courts. We are recognizing that legal — adversarial — responses to what are primarily social, relationship and financial problems, cause harm to families.

TC: Can you explain what you mean by “Theory of Change”?

DL: The concept of a Theory of Change is commonly used in systems change processes (it is described in detail here). Our work on the RFJS Theory of Change began in December 2014, and was based on the recognition that “… relationship breakdown is not a legal event that has some potential social consequences; it is a social phenomenon that has some legal consequences.” (Action Committee, Family Justice Working Group Report, Beyond Wise Words at p.14).

Facilitators led a number of different groups of Convenors and Collaborators through discussions which encouraged the group to really drill down to the systemic causes for the problems in the family justice system. Participants discussed why these causes exist, including what the worldview is that creates and fosters them, and what society’s basic myths and metaphors are about family justice, as these are part of our current mental model, or culture, which is a barrier to change. The group then focused on the new mental model that we want to create, and on high-level strategies to move forward. What made sense to the group was that our Theory of Change would follow a progression from problems, through strategies to outcomes, filtered through the lens that recognizes “Family justice issues are primarily social, relationship and financial, that contain a legal element.”

The Theory of Change for the RFJS is a living document that helps us maintain our focus on the “big picture” and on what is required to support the changes we are seeking. It helps us to be more explicit about the change that underpins the RFJS, to see where our various initiatives and areas of work fit into this big picture, and where we can integrate and align efforts to achieve the desired impact. It also helps us identify indicators for evaluation.

This is the first of a two-part series.

 

This article originally appeared on The Lawyer’s Daily on July 23, 2018. It is the ninth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.
The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

Access to Justice: Action Committee Looks at Problems, Innovative Solutions / Accès à la justice : le Comité d’action aborde les problèmes à la recherche de solutions innovatrices

La version française suit.

Access to justice leaders from coast to coast to coast met for two and one-half days in Ottawa in April at the annual summit of the Action Committee on Access to Justice in Civil and Family Matters. These people know better than most how big a challenge we face in improving access to justice. But that did not temper the enthusiasm for what has been accomplished or weaken the resolve to keep working for change.

Delegates representing the broad coalition that makes up the action committee — deputy ministers, the judiciary, provincial and territorial access to justice groups, legal aid plans, pro bono groups, public legal education providers, the bar, notaries, ADR professionals, administrative tribunals and the public — heard of the success of the action committee’s public engagement initiative and its innovation tool box project. Thousands of people engaged with the need for an effective civil and family justice system and people across Canada active in justice innovation developed communities of practice and other tools to help them with their important work. Sarah McCoubrey and Meredith Brown, access to justice strategists with Calibrate, designed and executed both projects, which were funded by the Law Foundation of Ontario.

The group also was given an update on progress on the action committee’s Justice Development Goals. Sixty-eight new initiatives to help people address everyday legal problems; 64 new initiatives designed to better meet legal needs, including eight new pro bono services; 50 projects aimed at improving family justice. And the list goes on.

One of the challenges facing reformers is the dearth of empirical evidence about how our civil and family justice system works and how to know if our reforms are having the intended effect. The improvement in justice metrics is a critical element of any long-term plan for systemic change. People at the summit learned of a project spearheaded by Jerry McHale which is bringing together a strong coalition to work on this topic. Bringing to together researchers at the faculties of law at the University of Victoria, University of Saskatchewan, York University and University of Montreal, the initiative’s goal is to develop priorities for justice system metrics and to build capacity for data gathering and analysis. And feeding into that effort was the work at the summit to begin to develop indicators; that is, things we can measure, in relation to each of the Justice Development Goals.

A full day of the summit was devoted to the issue of Indigenous child welfare. Organized by Scott Robertson of the Indigenous Bar Association and Mark Benton of the Legal Services Society of B.C., distinguished speakers from across Canada led us through an intense and impactful overview of the woeful state of services for Indigenous children and families in many parts of our country. While not usually discussed as an access to justice issue, the presentations at the summit showed that it certainly is. The child welfare system almost everywhere in Canada is not meeting the needs of children, families or communities. The speakers at the summit helped participants not only to better understand the problem, but also to hear about promising solutions. Better funding, more community leadership, more culturally appropriate options and a wider focus on the whole family were some of the aspects discussed.

To cap the summit, Beverley McLachlin, recently retired as chief justice of Canada, confirmed that she has agreed to assume the chair of the action committee this autumn. Her successor as chief justice, Richard Wagner, confirmed that he has accepted to take on the role of honourary chair of the action committee, following in his predecessor’s footsteps. Stay tuned!

All of us concerned about access to justice will not be satisfied until there is a great deal more improvement. But this gathering of leaders demonstrated that there is a growing commitment to make the necessary change and an impressive array of innovative projects showing that making that change is possible.
This article originally appeared on The Lawyer’s Daily on June 20, 2018. It is the eighth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.


En avril, des chefs de file sur les questions d’accès à la justice, venus des quatre coins du pays, se sont réunis pendant deux jours et demi à Ottawa, pour participer au sommet annuel du Comité d’action sur l’accès à la justice en matière civile et familiale. Ce sont des gens particulièrement bien placés pour savoir à quel point il peut être difficile d’améliorer l’accès à la justice. Mais cela ne les a pas empêchés de se réjouir des progrès accomplis, et ils restent déterminés à amener de plus amples changements par leur travail assidu.

Les délégués représentant la vaste coalition des parties membres du Comité d’action – des sous-ministres, des juges, des représentants de groupes provinciaux et territoriaux d’accès à la justice, de régimes d’aide juridique, des professionnels qui offrent bénévolement des services juridiques, des fournisseurs de services d’éducation juridique du public, des avocats, des notaires, des professionnels du règlement extrajudiciaire des différends (RED), ainsi que des représentants de tribunaux administratifs et du grand public –, ont été informés du succès que le Comité d’action a obtenu avec son initiative de consultation publique et son projet de boîte à outils de l’innovation. Des milliers de personnes consultées ont confirmé la nécessité d’assurer un système efficace de justice civile et familiale, et des gens de tout le Canada agissant pour l’innovation en matière de justice ont quant à eux mis en place des communautés de pratique et d’autres outils pour faciliter leur important travail. Sarah McCoubrey et Meredith Brown, stratèges sur les questions d’accès à la justice au sein de l’organisation Calibrate, ont conçu et mis à exécution les deux projets, qui ont été financés par la Fondation du droit de l’Ontario.

Le groupe a aussi été mis au courant des progrès qu’a réalisés le Comité d’action par rapport à ses Objectifs de développement en matière de justice : 68 nouvelles initiatives pour aider les gens à résoudre des problèmes juridiques courants; 64 nouvelles initiatives conçues pour mieux répondre aux besoins juridiques, dont huit nouveaux services juridiques offerts bénévolement par des professionnels; 50 projets visant à améliorer le système de justice familiale; et la liste se poursuit.

Une des difficultés auxquelles les réformateurs doivent faire face tient à la pénurie de données empiriques sur la façon dont fonctionne notre système de justice civile et familiale, et sur ce que nous pouvons faire pour savoir si nos réformes donnent les effets escomptés. Tout plan pour la réalisation d’un changement systémique à long terme doit nécessairement passer par l’amélioration des paramètres de mesure de ces données. Les participants au sommet ont été informés d’un projet mené par Jerry McHale, qui rassemble une solide coalition œuvrant en ce sens, formée de chercheurs des facultés de droit de l’Université de Victoria, de l’Université de la Saskatchewan, de l’Université York et de l’Université de Montréal. L’objectif du projet consiste à déterminer les priorités de mesure pour les données relatives au système de justice, et de renforcer la capacité de collecte et d’analyse de ces données. Les participants au sommet y ont contribué en entamant l’élaboration d’indicateurs – c’est-à-dire des éléments que nous pouvons mesurer par rapport à chacun des Objectifs de développement en matière de justice.

Une journée entière du sommet a été consacrée à la question des services d’aide aux enfants autochtones. Cette journée était organisée par Scott Robertson de l’Association du Barreau autochtone et de Mark Benton de la Legal Services Society de Colombie-Britannique, et d’éminents conférenciers d’un peu partout au Canada nous y ont donné un aperçu criant et saisissant de l’état déplorable dans lequel se trouvent les services destinés aux enfants et familles autochtones, à de nombreux endroits au pays. Bien que ce ne soit habituellement pas traité comme un enjeu d’accès à la justice, les exposés entendus au sommet ont démontré que c’en était bel et bien un. Presque partout au Canada, le système de protection de l’enfance ne répond aux besoins ni des enfants, ni des familles, ni des collectivités concernées. Les conférenciers du sommet ont permis aux participants non seulement de mieux comprendre la problématique, mais aussi de prendre connaissance de solutions prometteuses. Parmi les aspects traités, il y avait notamment l’amélioration du financement, le renforcement du leadership communautaire, l’élaboration de possibilités mieux adaptées à la réalité culturelle, et l’élargissement du cadre d’intervention afin d’y inclure toute la famille.

Pour couronner le tout, Beverley McLachlin, récemment retraitée de ses fonctions de juge en chef du Canada, a confirmé qu’elle avait accepté d’assumer la présidence du Comité d’action à partir de cet automne. Son successeur à titre de juge en chef, Richard Wagner, a quant à lui confirmé qu’il suivrait ses traces en acceptant la présidence honoraire. Ce sera donc à suivre!

Nous tous, qui nous préoccupons d’accès à la justice, continuerons de veiller au grain tant et aussi longtemps que les choses ne se seront pas nettement améliorées. Entre-temps, cette rencontre de chefs de file en la matière a montré que de plus en plus de parties s’engagent à effectuer les changements nécessaires, et la gamme impressionnante de projets innovateurs qui y ont été présentés tend à démontrer que ces changements sont tout à fait possibles.

L’honorable Thomas Cromwell a été juge d’appel pendant 19 ans et siège au Comité d’action sur l’accès à la justice en matière civile et familiale établi à la demande de la juge en chef. Il a pris sa retraite de la Cour suprême du Canada en septembre 2016 et agit désormais comme avocat-conseil principal dans le domaine du contentieux à l’échelle nationale, au sein du cabinet Borden Ladner Gervais.