Evolution of Family Legal Services Provider

By Steve Benmor

Law360 Canada (December 9, 2022, 10:17 AM EST) --
Steve Benmor
Steve Benmor
The Law Society of Ontario has just announced that for the very first time in the history of the legal profession in Canada that non-lawyers will be permitted to provide legal advice to separating spouses and legal representation to them in family court.

Licensed paralegals will be able to apply for a Family Legal Services Provider (FLSP) licence and, once qualified, may represent spouses with applications in the Ontario Superior Court of Justice for joint and uncontested divorces and simple motions to change child support in both the Ontario Superior Court of Justice and the Ontario Court of Justice. 

FLSPs will require membership in the LSO, 260 hours of family law training, passing of an examination and professional insurance. The LSO’s Access to Justice Committee will review the FLSP licence within three years.

This evolution follows a lengthy consultation process that goes back to 2016, when the then-attorney general of Ontario and the then-treasurer of the LSO appointed former chief justice Annemarie Bonkalo to lead the Family Legal Services Review and investigate whether the family justice system could be improved by expanding the delivery of legal services to providers other than lawyers, such as paralegals.

Why did this occur?

There had been a growing epidemic in the courts. The review found that 57 per cent of Ontarians did not have legal representation in family court in 2015 and that the percentage of self-represented litigants (SRLs) was much higher when including those not in court.

Justice Bonkalo discovered that the percentages of SRLs in two of Toronto’s downtown courthouses were over 73 per cent. The Department of Justice Canada survey of family courts in 2016 showed that in the last 15 years, an increasing number of separating parents did not have representation to resolve child-related issues such as custody, access and child support. The judges interviewed reported that the high volume of SRLs negatively impacted the already overburdened court system, increased the amount of court time needed to resolve a case and made it harder for those with representation to obtain speedy access to the courts.

University of Windsor professor Julie Macfarlane established the “National Self-Represented Litigants Project” to identify the needs of SRLs and advocate for a better understanding of their needs, motivations and challenges.

Justice Bonkalo and Macfarlane, along with many other professors, social scientists and judges, found that the most consistently cited reason for self-representation is the SRL’s inability to afford a lawyer. It was also found that legal aid was unable to meet the needs of Ontarians, as most do not meet the financial eligibility threshold for legal aid funding but could not afford a lawyer.

It was found that paralegals charge an average of $138 per hour, whereas family lawyers charge an average of $332 an hour. The data also showed that lawyers have higher office costs and paralegals have lower operating costs as they work from home (note this data is pre-pandemic).

In the end, Justice Bonkalo recommended that paralegals provide legal services in family law, which led to the LSO’s creation of the FLSP licence.

Has the time come for lawyers to lose the monopoly over legal services?

In the coming years, we will see how the problem that the FLSPs are supposed to solve will pan out. Will the public provide a positive report on the improvements to access to family justice? Will lawyers be retained to undo the errors of negligent paralegals? Will judges applaud the easing of the backlog in the courts with the assistance of FLSPs or be critical of the advent of new problems? Stay tuned.

Steve Benmor of Benmor Family Law Group is certified as a specialist in family law by the Law Society of Ontario, certified as a specialist in parenting co-ordination by the Family Dispute Resolution Institute of Ontario and certified as a family mediator by the ADR Institute of Ontario. 

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, 
The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice

Photo credit / designer491

Interested in writing for us? To learn more about how you can add your voice to 
The Lawyer’s Daily, contact Analysis Editor Yvette Trancoso at Yvette.Trancoso-barrett@lexisnexis.ca or call 905-415-5811.