In an effort to address access to justice issues in family law, the Law Society of Ontario, in partnership with the Superior Court of Justice and the Ontario Court of Justice, will be launching a pilot project on Jan. 17 that will permit eligible lawyer licensing candidates to “attend to an increased number of matters related to family law cases without first needing permission of the court.”
The Family Law Rights of Appearance Pilot Project, announced on Dec. 14, 2021, is a part of the LSO’s Family Law Action Plan.
LSO treasurer, Teresa Donnelly, stressed that one of the law society’s duties is to “facilitate access to justice for the people of Ontario.”
Teresa Donnelly, LSO treasurer
She explained that the overall goal was “to provide increased and more affordable access to legal services.” Donnelly noted that the pilot project is “one part of the plan.”
“[In] the Family Law Action Plan, one part was a commitment to explore how lawyer licensing candidates with appropriate supervision could provide support for the delivery of family law services. And so, this pilot project implements that commitment,” she added.
Donnelly noted that the law society has been working on other aspects of the Family Law Action Plan, but in November 2020, the Superior Court of Justice reached out and wanted to discuss the part about experiential training.
“As soon as they came to us we said, ‘well, we have to have the Ontario Court of Justice at the table.’ And so, we brought them [on] and it was all of us, the three parts, highly motivated to make this work. It started a great collaboration between the law society, the Superior Court and the family court,” she said, noting the project has been a “great collaboration.”
“It was always something we wanted to do to increase access to justice in family law, but really we got motivated when the Superior Court came to us and said ‘let’s talk about it,’ ” she added.
Donnelly stressed that the LSO sees a “critical need to increase access to justice in family law.”
“Many Ontarians are likely to experience a family law issue at some point in their lives,” she said, noting that legal representation in family court is “an acute area of need.”
“Approximately 60 per cent of Ontarians do not have legal representation in family court and some studies and research suggests that the percentage is higher than that. We also have information that says that lower- and middle-income families often have difficulty affording a lawyer at all or on a full retainer basis,” she explained, adding that this leads to a “high number of self-represented litigants in family court” who “do not fair as well as those who have legal representation.”
“Research also shows that self-represented litigants are less likely to settle, that when one party is represented and the other is not the legal costs for the represented party increase, so we see a gap in the provision of family legal services,” Donnelly said.
The treasurer noted that this pilot project is “not going to solve” the “crisis in family law,” but it will help address the problem.
“It’s not the cure,” she said. “This isn’t the one thing that’s going to solve the whole problem, but it’s certainly something that’s positive; it’s beneficial. I think it’s good for everybody involved.”
Donnelly believes that the pilot project will be a “win-win for everybody involved and it’ll help with access to justice in family law.”
The project will benefit family law lawyers because they “will have students, lawyer licensing candidates, who are able to assist in family court by going to court on certain matters.”
“Lawyers will then have a more cost-effective option for assisting clients by [having] lawyer licensing candidates to appear on specified matters, and it may also encourage family law lawyers to take on lawyer licensing students in placement or articling,” Donnelly added.
Lawyer licensing candidates will benefit from “increased opportunities to appear in court in certain family law matters,” the treasurer noted, adding the project will provide candidates with “more meaningful experiences and increase readiness to practise law.”
She added that “these opportunities at the lawyer licensing phase may also encourage some of these lawyers to pursue family law as an area of practice. So that they then become family law lawyers, which will also assist with access to justice for family law litigants.”
The treasurer also believes the project will “increase the number of articling [positions] and placements,” which would be a benefit.
Donnelly stressed that the LSO is a “public interest regulator. The benefit to the public is an increase of access to “more affordable family law legal services.”
“We hope and expect that the project will help reduce the number of self-represented litigants in matters before family courts,” she said, noting that there will be “safeguards in place to ensure that clients’ interests are protected when the lawyer licensing candidates are appearing in court.”
Donnelly is “excited” about the project and said it’s moving the LSO forward on its “commitments” and “action plan to try and help the people of Ontario in family law to increase access to justice.”
The Superior Court of Justice’s (SCJ) Office of the Chief Justice told The Lawyer’s Daily that family law is “an area with very significant rates of self-representation.”
“Family justice system participants, including the courts, have been considering challenges with access to affordable legal representation for many years. The pilot is one initiative that is intended to help address this issue, in addition to recent efforts at the SCJ to help streamline family court cases. The court has also supported related projects like Ontario’s Family Law Limited Scope Services project, for similar reasons,” they said.
“Ideally, the pilot will increase access to affordable family law advice, so that more litigants have access to assistance as they navigate the resolution of their family law disputes. The pilot should also give the next generation of lawyer's greater exposure to family law before their call to the bar, which may encourage them to practice in this important area,” they added.
Donnelly noted that another part of the Family Law Action Plan is the Family Legal Services Provider Licence. According to the LSO’s website, this licence would “permit appropriately trained paralegals to provide some legal services in family law.”
“We have been working on that,” Donnelly said, noting she’s hopeful a proposed model for the Family Legal Services Provider Licence will be brought to Convocation in February 2022.
“We’re going to release the report ahead of time publicly, well in advance of Convocation, and we’re targeting the week of January 21,” she added.
The Law Society’s Access to Justice Committee already held a call for comment on the proposed model between June to November 2020 and is considering the submissions received.
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