LSO approves Family Legal Services Provider licence allowing paralegals ‘limited scope’ in family law

By Amanda Jerome

Law360 Canada (December 1, 2022, 4:16 PM EST) -- After an intense and lengthy debate, the Law Society of Ontario (LSO) has approved the Family Legal Services Provider (FLSP) licence, which will allow “specially trained paralegals to provide a limited scope of service in family law matters.”

The motion on the licence was presented to Convocation on Dec. 1 by paralegal bencher Cathy Corsetti. She said, “specifically, the FLSP would provide legal services related to process navigation, joint and uncontested divorces, motions to change for child support based on straightforward income and excluding special and extraordinary expenses, change of name applications and family responsibility office enforcement proceedings, again excluding enforcement related to motions to change involving special and extraordinary expenses.”

“The goal of this licence is to enhance access to legal services for the many family law litigants who do not have legal representation when they need it,” she added.

Paralegal bencher Cathy Corsetti

Paralegal bencher Cathy Corsetti

Corsetti noted it has been a “long road to get to this point,” staring with the Family Legal Services Review written by former justice Annemarie Bonkalo in 2016.

Corsetti then outlined the developments that had occurred since June 2020, as “they are particularly relevant” to the motion.

“At that time,” she said, the Access to Justice Committee “released a public consultation paper on the proposed model for the FLSP licence with a broad scope. The scope included divorces, custody and access, child and spousal support, separation agreements, and property division, all with some qualifications.”

According to Corsetti, the “proposed training program would last six to eight months.”

“I would like to point out that the consultation model was never recommended by the committee. It was a model approved for consultation only. The consultation period closed November 2020. After five months, the law society received 172 submissions: 132 from individuals and 40 from organizations,” she said, noting that these submissions are “publicly available on the law society’s website.”

In those submissions, she noted, “there was almost a universal recognition of access to justice crisis in family law.”

“Many agreed that specialized trained paralegals have a role to play in addressing that crisis. However, many submissions from lawyers and lawyer organizations expressed concern about the breadth of the scope, and some paralegals expressed concerns about the length of the training program. Notably, the law society received written responses from the courts, which rejected the proposed scope in the consultation paper,” she added.

Corsetti explained that Chief Justice Lise Maisonneuve of the Ontario Court of Justice “took the position that paralegals should not provide legal representation or advice to family law litigants without the supervision of a lawyer.”

Chief Justice Geoffrey Morawetz of the Superior Court of Justice, she said, “noted his court’s significant concerns regarding very broad scope of unsupervised practice.”

“He suggested a more cautious approach to expansion, but indicated he would support a limited and clearly defined role for the FLSP,” she added.

The pushback from the judiciary led to further consultation and a narrowed model of the FLSP.

Corsetti noted that the FLSP as presented in the motion would not “result in great improvements in access to justice,” but she encouraged Convocation to approve it as “a start.”

“It's a path forward that will open the door to family law,” she stressed.

Before Convocation could debate the matter, benchers Robert Burd and Julian Falconer asked that a motion they had filed be heard first as it dealt with the FLSP motion. The motion consisted of two parts and asked that the FLSP issue be dealt with in-camera and that the “Paralegal licence (P1) be amended as an administrative measure (along with appropriate Program modifications) to include the scope outlined in the treasurer’s report.”

Treasurer Jacqueline Horvat ruled the first part of the motion out of order as “on a point of procedure, it deals with separate issues of process related to certain policy initiatives, and as such would require at least 20 days’ notice under Bylaw three as a Notice of Motion for Convocation.” She also ruled the second part of the motion out of order as it was “not in the nature of an amendment” to the FLSP motion before Convocation.

Bencher Burd asked to appeal the second out of order ruling. However, the treasurer’s ruling was upheld by a Convocation vote, 28-17 with one abstention.

Many benchers remarked on how the licence was too limited and wouldn’t be taken up by paralegals or supported by the bar. However, paralegal bencher Michelle Lomazzo stressed this is an “access to justice issue.”

“It’s not about what paralegals or lawyers want. It’s about what the public needs,” she explained, referencing the numerous letters of support the law society and benchers have received by individual licensees as well as organizations, such as the Women’s Paralegal Association of Ontario and the Ontario Paralegal Association.

Bencher Cheryl Siran, who practises family law, said she’s “watched the erosion” of private practice in her region and “it’s only getting worse.”

“It falls to us today, in my view, to take a step, even if it’s a small step to alleviate this problem,” she added.

Bencher Cheryl Lean, who also practises in family law at the Unified Family Court, says the situation is “a disaster right now.”

“It’s virtually collapsed,” she added, noting it can be six to eight months before her clients see a judge in a case conference.

Lean said the FLSP licence is “so limited” and considered it risky for paralegals. She suggested that the Family Law Rules need be reformed and the current FLSP licence, as proposed, can’t succeed.

Emeritus treasurer Laurie Pawlitza said she’s practised exclusively in family law for over 30 years and noted the issue of paralegals working in family law actually started in 1998 when it was examined by former Supreme Court of Canada Justice Peter Cory.

“Everyone in this room should be ashamed that we are still debating this issue. [In] 2011, as the treasurer, I said we would look at the Cory report, and we would attempt to move forward to changing paralegal scope of practice. It is 11 years later, and we are still debating this issue,” she stressed.

Pawlitza asked whether Convocation was “actually going to govern in the public interest, which we have not done and not moved forward with since Peter Cory began in 1998.”

“This proposal is something that can make a difference,” she added, encouraging support of the motion.

She urged benchers not to “fiddle while Rome burns.”

The motion passed 37-10.

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