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| Nicholas Bala |
The growing numbers of unrepresented litigants in family law cases is a major concern in many jurisdictions, resulting in a range of responses, including the recent proposal of the Law Society of Ontario’s Access to Justice Committee for a Family Legal Services Provider (FLSP) Licence. The committee is recommending the creation of a new category of paralegals who will complete a community college program of about six-and-a-half months and a 10-week placement, and can then be licensed as FLSPs to provide representation in family cases that do not involve more complex or significant economic issues.
This controversial proposal will be voted on by the LSO benchers at their meeting on Feb. 24. Many family lawyers (and likely many judges) are deeply concerned that the proposal does not recognize the nature and complexity of family cases, and fear that it will expose vulnerable children and parents to serious risk, while not properly addressing the problems of access to family justice. The law society needs to better understand the nature and challenges of family practice before providing paralegals a role in cases involving the futures of children and families.
The crisis in access to family justice has long been recognized by professionals, judges and academics, and was documented by the Cromwell Committee in 2013, which made recommendations that included a role for paralegals in the family justice system. That committee, however, also emphasized the need for collaboration with the family law judiciary and bar in making changes. In 2016 the Ontario government released the Bonkalo Report, which also proposed reforms to allow for a limited role for paralegals in the family justice process, but recommended a carefully staged implementation process.
The LSO committee received submissions from organizations and individuals and surveyed lawyers and presently licensed paralegals. The committee appears to have been driven by a concern with developing a sufficiently wide scope of practice for FLSPs to ensure “viability” of an “independent practice” for FLSPs, while discounting the input of experienced family justice professionals. Rejecting the approach of earlier studies for staged implementation, the report proposes a single step of implementation, with a wide scope for family practice by independent paralegals. There is no precedent elsewhere for this type of paralegal role in family justice.
Licensed paralegals can effectively handle cases that have a defined scope and predictable path, such as landlord-tenant matters. They should have a role in family cases to improve access to justice, but family cases involve inter-related and often complex issues, have an unpredictable nature and potentially profound impacts. It is not just discrete legal issues that need to be identified and assigned to a category of professionals, but also their inter-relationship that needs to be considered. While some family law cases can be addressed in a relatively mechanical way, many cannot, and it is often impossible to know how a case will evolve based on initial interviews with one party.
An appropriate role for family paralegals
Allowing (and indeed encouraging) paralegals to have a role in providing family justice services, including some court attendances, is sound. The committee correctly points out that some ethnic communities are under-represented in the bar would benefit from having paralegals who share their culture or language. One may also expect that paralegals will generally provide services at a lower cost than lawyers, though this will not always be the case, especially with the increased availability of limited scope services by family lawyers.
There is support in the bar for paralegals to provide some family law services. Indeed, many family lawyers already make extensive use of law clerks and administrative staff, for example to help clients complete forms and gather disclosure. Many family lawyers would make more use of paralegal staff if they have more relevant educational preparation for family practice and are permitted to attend court.
Unfortunately, the approach recommended by a majority of the committee fails to recognize the nature and complexity of family cases. The report takes a “meat chart” approach to family cases, identifying specific legal issues that it believes could be handled by a person with very limited legal education and training. Some of those issues, like child support where the payor only has employment income, might well be handled by a paralegal, and indeed many self-represented individuals can deal with such issues without professional assistance.
Notably, the report effectively precludes any involvement by paralegals in cases where there is any significant wealth or financial complexity, such as if either spouse has a pension or business, or there is more than one family home. That is, if clients (or their former partners) have much income or wealth, they generally will not be able to use paralegals to resolve their cases. However, for clients with more limited means, the report advocates allowing full representation by paralegals for all aspects of their cases, including contested issues of parenting and family violence. Paralegals will only be precluded from providing representation if “expert evidence” is needed.
Parenting and domestic violence cases can be highly complex and have profound consequences for parents and children. These cases, even without a role for experts, often involve challenging issues of procedure, evidence, substantive law and child development, and require sophisticated advocacy and dispute resolution skills. While the report points out that licensed professionals, including paralegals, should only provide representation if they are competent to do so, the report fails to address how this is to be addressed with the proposed licence.
Moving forward with family law paralegals
The report fails to properly address the critical issue of the relationship between FLSPs and family lawyers. This relationship will be essential both to allow for placements, a key educational expectation for FLSPs, and to protect clients and their children. Each FLSP should have a relationship with one or more experienced family lawyers who can provide consultation and, if needed, could take over a case. The FLSP and lawyer could have a partnership or employment relationship, or they could be independent professionals, with a relationship for an individual case (or more likely a series of cases). If independent, the FLSP could, within the defined limits, resolve the case alone if court attendance is not required, with the FLSP having sole professional responsibility. If, however, court appearances are involved, the FLSP should be required to consult with a lawyer; the lawyer would then be able to assume responsibility if the case becomes more contentious or complex.
In many places the LSO committee report notes that its sweeping one-and-done proposals were supported by a “majority” of the committee, and dismisses views of an unidentified minority that advocated a more careful and nuanced approach to reform. If the FLSP licence is to be successful, the law society needs to consult and collaborate more effectively with the family law bar and judiciary to develop a more sophisticated, properly grounded plan for paralegal involvement in family justice in Ontario.
Nicholas Bala is a law professor at Queen’s University. In 2009 he was awarded the Law Society of Upper Canada Medal for his contributions to family justice education and research.
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