Family Legal Services Provider licence ‘good first step,’ assists A2J, say legal professionals

By Amanda Jerome

Law360 Canada (December 22, 2022, 3:09 PM EST) -- The Family Legal Services Provider (FLSP) licence is the “first expansion” of paralegal regulation in 15 years. Legal professionals and the public have raised the alarm about access to justice in the family courts. However, some family lawyers and paralegals believe that the FLSP licence is a “good first step” to address the crisis.

As previously reported in The Lawyer’s Daily, the Law Society of Ontario (LSO) approved the licence, which will allow “specially trained paralegals to provide a limited scope of service in family law matters,” on Dec. 1.

Cathy Corsetti, who brought the motion to approve the licence to Convocation, has been a paralegal for over 40 years, and she’s “thrilled” that the FLSP licence has been given the green light.

Cathy Corsetti, LSO paralegal bencher

Cathy Corsetti, LSO paralegal bencher

“Paralegals are a great resource for access to justice,” she said, noting that they work in specialized areas such as “landlord and tenant, traffic and small claims court.”

“The people of Ontario are comfortable using paralegals for their basic legal needs. They build trust and relationships,” she explained, further noting that the “majority” of paralegals are “racialized” and “speak different languages.”

Corsetti envisions the FLSP becoming a specialized complement to what paralegals already do for their communities, noting they will be able to assist with uncontested divorces.

“We’ve been hearing about the family law crisis forever,” she said, stressing that the FLSP is “not” the complete answer to the problem, but “it’ll help some of the unrepresented people find more affordable legal representation.”

When addressing Convocation on Dec. 1, Corsetti explained that “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.”

In an interview with The Lawyer’s Daily, she noted that the FLSP could open “the door for new employment opportunities for paralegals, which is a win-win.”

“I could see law firms really seeing an FLSP as a complement to their practice,” she said.

Before Convocation approved the licence, benchers engaged in a lengthy and heated debate, with some noting that the licence was “too limited.”

Corsetti acknowledged that the LSO “hoped for more” scope, but this is “definitely a foot in the door, with the hope that when the review comes in three years, we can expand to other areas” where help is needed.

While the licence may be “limited,” Corsetti noted that paralegals are “not known in the courts that they’ll be stepping into.”

“Once they are able to prove themselves as far as competent representation, I think it definitely will expand. That’s what I hope,” she added.

According to the report brought before Convocation, the training program for the licence would be a “minimum of 260 mandatory instructional hours to support approximately 98 competencies.”

Due to this lengthy training schedule, and the fact that the curriculum still has to be developed and established through community colleges, Corsetti anticipates the “first group of FLSP will be able to assist the public by the winter or the spring of 2025.”

She explained that the LSO “regulates the curriculum, but it's got to be created by the colleges as well.”

“At this point, there wouldn’t be any textbooks on this area because it’s so specialized,” she said, stressing that it’s a “totally new program.”

Corsetti is a part-time professor at Mohawk College in Hamilton, teaching paralegal ethics and landlord and tenant law. She noted that students are eager for a program in family law.

“You would not believe how many students have said to me, ‘I’m waiting for this. This is why took the paralegal [program],’ ” she said.

Corsetti is sure that the FLSP will assist unrepresented litigants, which, she added, was the whole point of the Family Legal Services Review written by former justice Annemarie Bonkalo in 2016.

“I really think that it will help the people of Ontario get some type of representation, more affordable representation,” she said, noting that paralegals will be able to help with uncontested divorces, which aren’t of much interest to law firms.

Firms want the divorces with “the two houses, and the six cars, and the investment properties,” she added, stressing that paralegals will be helping the “average,” “middle income” family who “just wants their divorce done, and want paperwork, and need some court assistance.”

Corsetti hopes that soon other provinces and territories will regulate paralegals and a licence, such as the FLSP, will be taken up in other jurisdictions.

“The people of Ontario are really lucky to be able to have an alternative to going to a law firm for simple matters,” she said, noting that the FLSP is a “really good start” to helping in family court.

Tom Dart, Barriston Law LLP

Tom Dart, Barriston Law LLP

Tom Dart, of Barriston Law LLP, is a family law lawyer, mediator and arbitrator and the past president of the Ontario Bar Association’s family law section. He’s been practising since 1976 and believes the FLSP will be “very helpful.”

He noted that the LSO has “limited the scope of the paralegal capabilities” in a “well-thought-out way” given the “amount of time that the paralegal will have to spend in the educational process.”

Dart believes that the FLSP will be “good for clients who have limited family law problems, such as navigating through the court system.”

“I think what sometimes is forgotten is that law firms usually employ a team of staff members to manage a client file. Often, we have people with paralegal skills in the firm, doing the work at much lower hourly rates. So, there is a lot of capacity out there already, in most law firms, to offer services at a lower hourly rate,” he said, noting that it will be “interesting to find out how the paralegals will be able to bring down the fees.”

He wonders: “what will they be able to charge and still function from a business perspective?”

“That's the unknown quantity here,” he added, noting that “hopefully,” the FLSP will allow paralegals to offer fees “lower than what law firms charge for these services.”

“And hopefully, it'll meet a client need because there’s so much need out there with clients who can’t afford lawyers,” he emphasized.

Dart wishes the scope of the licence “could be broader,” but he doesn’t think it can be as family law is “such a complex area.”

“That’s the problem,” he explained, noting that to “provide additional services beyond what’s inside” the FLSP scope would “require more education” and “experience.”

Dart stressed that “there’s nothing simple in family law.”

“Parenting issues are extremely important to clients and very difficult to deal with because it’s such a complex area and can be so complicated. So, to expand the scope beyond what the law society is recommending would require a lot more education for the paralegal. And you’re getting to the point of them being a lawyer, so how there’s a fine line there,” he added.

Dart believes that the FLSP will “definitely” help access to justice, but notes, despite the assistance the licence will provide, “people are still going to be self-represented” and they “can't afford legal services” due to the “limitation that the government has imposed on legal aid services.”

He explained that people “used to be able to get a legal aid certificate to deal with all issues on a family law file,” but the government has “severely restricted and limited” what legal aid certificates can be granted for, which is causing the “systemic” issues in the system.

Dart is hopeful that the FLSP will “improve access to justice” because it will “educate more people about the processes of court” and paralegals will also be educated on “alternative dispute resolution services to keep people out of court.”

“Right now,” he added, “our poor court system is just so heavily burdened.”

Dart explained that judges and “everybody in the system” are “working very hard, but it’s impossible to keep up with the load that’s upon them right now.”

“We’ve got to figure out some way to help people stay out of court and get their disputes resolved in a much less expensive way,” he said, noting that the problem is not “who is going provide the legal services,” as the issue is “far more systemic than that.”

“We’ve got to figure out how to help these folks get the funding to do the other big items that they need to deal with, but that they can’t afford,” he added, noting that it’s “wise” for the FLSP licence to “start out slow,” but can see the scope expanding in the future.

Dart wishes that paralegals “could eventually be used to help draft Separation Agreements that come out of mediation.”

“I think this is the first step. I think it’s a good first step. And I think as time marches on, maybe we can all become more comfortable and maybe paralegals will become more interested and want to expand their training to additional scope items. I think you’ve got to start somewhere, and I think this is a good beginning,” he added.

Dart also hopes that the family bar will “support” the licence because “it is going to help.”

“I think it’s limited enough in scope that most people should feel comfortable with it,” he said.

In response to request for comment from The Lawyer’s Daily, Kathy Batycky, chair of the Ontario Bar Association’s family law section said, “the law society is required to protect the public and regulate in a manner that promotes access to justice. It will be critical over the next three years to ensure that these goals are being met with the Family Legal Services Provider licence.”

“People who are seeking the assistance of family law professionals are often at their most vulnerable, and inadequate service can have long-term, devastating effects on them and their families. The viability of the licence should also be considered in the context of other family law access to justice initiatives that could be supported and enhanced,” she explained.

“To serve the public, we owe them a thorough examination of whether the licence makes the legal process easier to navigate and more affordable to access in a manner that does not compromise the quality of legal services or the ability of the public to identify appropriate service providers for their family law issues,” she added.

Another consideration as paralegal regulation expands is insurance and adverse claims. According to an LSO spokesperson, “paralegals are required to carry errors and omissions insurance, but they are not collectively insured as are lawyers through LawPRO.”

“Paralegals purchase insurance from many different insurers on an individual or firm basis. A paralegal who obtains an FLSP licence will be required to carry additional insurance at a level to be established by the law society and the cost of that insurance will be determined by the individual insurer,” they added.

The Ontario Paralegal Association and the Family Lawyers Association did not respond to request for comment.

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