Family law plan puts public at risk, lawyers’ groups say

By Tony Poland, LegalMatters Staff • The Law Society of Ontario’s (LSO) proposal for a Family Legal Services Provider licence for paralegals is based on “flawed data” with “utterly unrealistic expectations” and is unlikely to achieve its stated goal of providing access to justice for Ontario families, according to a statement by lawyers’ groups including the Toronto Lawyers Association (TLA).

The joint communiqué released by the Advocates’ Society, the Federation of Ontario Law Association, the Family Lawyers Association and the TLA says the proposal is “not in the public interest and will not serve the critical legal needs of vulnerable members of the community.”

“Family law matters are unpredictable and complex, and the consequences for the individuals and families involved can be grave. The Report’s assertion that there is a ‘hierarchy’ of issues that paralegals could be instructed to address in a consistent sequence is false and demonstrates a fundamental misunderstanding of family law,” the communiqué states. “The proposed motion puts the LSO at risk of failing to meet its statutory obligation to regulate the professions in the public interest and to ensure legal service providers meet the appropriate standards of professional competence.”

The proposal goes to a vote at LSO Convocation on Feb. 24.

‘Having paralegals acting as lawyers in court is not feasible’

“The Law Society has been working on and promoting this idea of having a Family Legal Services Provider (FLSP) licence, which is essentially permitting paralegals to practise family law,” says Sarah Boulby, a partner at boutique family law firm Boulby Weinberg LLP and chair of the Toronto Lawyers Association’s family and estate committee. “This is a complex area and having paralegals acting as lawyers in court is not feasible. 

“The LSO starts from the assumption that access to justice is going to be helped by having paralegals in this role. We don’t agree that there is evidence to support that argument,” she tells LegalMattersCanada.ca.

“They have constructed the entire proposal based on ensuring there is enough business to make it viable and that is the wrong way around. If it is not possible to be competent to do family law work, then there’s a real risk to the public.”

The communiqué argues that the proposed motion “puts the LSO at risk of failing to meet its statutory obligation to regulate the professions in the public interest and to ensure legal service providers meet the appropriate standards of professional competence.” 

The lawyers’ groups say the LSO plan “rests on flawed data and flawed conclusions drawn from the data.”

Report ignores ‘very real concerns’

“Our associations, the Ontario Court of Justice, the Superior Court of Justice and the Court of Appeal for Ontario all made submissions to the Committee that opposed the proposed scope of the FLSP licence, for very similar reasons. The Report largely ignores these submissions and the very real concerns raised,” according to the communiqué.

Boulby says the proposal is based on the notion that there is a problem with access to justice for Ontario families.

“Legal fees are expensive. There are people who are not able to hire lawyers because they can’t afford it. Legal Aid has a very low cut off for income,” she says. “Wealthy people can afford lawyers, but there are people in the middle who find it challenging.

“The LSO proposal states that paralegals will be more cost-effective than family lawyers, doing the same work. However, if you look at the report, they don’t actually have any evidence to support that assumption.” 

For example, she says, paralegals generally charge block fees that are “appealing to a client because you know what the total cost is going to be.” 

While the concept may work in some areas of a paralegal practice, many of the issues in family law are “so variable that it is impossible to block fee,” Boulby says. 

Difficult to predict when a case will be resolved

“If somebody retains me to deal with a parenting dispute, I am not sure if it will be resolved within a few weeks, a few months or two years later after being in court,” she explains. “Block fees will not work because it is impossible to know how long it will take to resolve the case, so your fee would either be too low or too high.

“The Law Society says we should have paralegals practising family law because they will block fee more since they do it for other work,” Boulby adds. “But that makes no sense. It’s like saying one, plus one equals three.” 

She says it has been argued paralegals will have lower overhead and will be able to pass the savings on to clients.  

“For example, the LSO notes that family lawyers have to buy more software than paralegals, but the obvious reason for that is the work requires software to do such things as financial analysis, equalization schedules, financial statements, tax analysis and income analysis for support,” says Boulby. “If a paralegal is going to be practising family law, they are going to need the same software. They are going to have that expense.

“The LSO does not actually have any strong evidence that paralegals will be cheaper. Our expectation, because we run these businesses, is that if they are permitted to practise family law, these paralegals are going to have the same expenses and same pressures that family lawyers do.”

No price control measures in the proposal

Boulby also says there are “no price controls” or mechanism to prevent paralegals from increasing their fees.

There is also the issue of insurance. 

“Lawyers are insured through LawPRO but not paralegals, nor should they be because with lower educational levels and higher risk, if they were covered the premiums will go up for everybody, and that would affect legal fees for anybody who retains lawyers,” she says.

Family lawyers deal with considerable assets in a separation agreement or divorce, including the family home, investments and other property, says Boulby.

“But the FLSP proposal offers no plan for insurance. They say, ‘The insurance hasn’t been worked out, but let’s go ahead anyway,’ and it seems to us that ignoring or minimizing that issue of insurance is reckless,” she says. “There is a risk to the public of having a paralegal who makes a huge mistake without being properly insured.”

Family law is complicated

Boulby says family law is complicated, dealing not only with complex financial considerations but child issues. However, the training program for paralegals is only 28 weeks, which “is not even slightly realistic,” she says.

“You need to know the family law legislation. You also need to understand tax legislation, issues of bankruptcy, business law, and how to draft contracts. That is an expertise in and of itself,” Boulby says. “A 28-week training program is just not feasible. We know because we do this work. It is necessary to have a three-year law degree and to have articled, completed the LPP program, or clerked in the court.”

The other concern is the price tag of the initiative, she says, noting the proposal will cost $550,000 to $800,000, at a minimum, and likely more than $1 million to initiate. 

“They acknowledge that they are going to have to hire more staff to deal with it,” Boulby says. “Paralegals will obviously pay fees to be licensed, but it is acknowledged in the proposal that the program may not be self-sustaining, in which case everybody else who’s already licensed would subsidize the family law paralegal on an ongoing basis. And that, perversely, will affect all the lawyers and also increase the cost of family lawyers and put more pressure on family law fees.”

The lawyers’ groups are also opposed to a proposal to put funds into marketing to promote the program.

‘The Law Society should not be marketing any private business’

“That is something that should not happen. The Law Society should not be marketing any private business, whether it is lawyers or paralegals,” says Boulby. “It is not appropriate. The LSO should be there to ensure the public is protected from people giving legal services without having the proper competence or not having proper financial controls.”

She notes that it is not only lawyers who oppose the plan, but judges have also spoken out.

“There are many issues that we in the Toronto Lawyers Association have with this, but one major one is simply that it is the courts that decide who has the right of audience, not the Law Society and the courts are opposed to this proposal,” says Boulby.

She says another concern is that while it is not ideal for someone to be self-represented, they do receive special consideration from the courts as mandated by the Supreme Court of Canada. However, they would lose that consideration if represented by a paralegal.

Other initiatives have improved access to justice

The Law Society has been focused on paralegals as the only solution to access to family law justice, she says, but other initiatives have been introduced that have been helping, such as the limited scope services project, which allows lawyers to do such work as helping to draft pleadings without taking on the full representation. “We’ve now just recently started with an expansion scope of practice for articling and LPP students so they can go to court,” Boulby says. “We have the Family Justice Centre, to provide pro bono family advice and support for separating parties.”

The court also introduced automatic financial disclosure orders, so people do not have to go to court to fight to get their spouse’s tax returns. There is also the Judicial Dispute Resolution Project, which will see judges meet with parties in less complicated matters to try to mediate a settlement.

“These are initiatives that are underway that actually would help access to justice that the LSO needs to be promoting,” Boulby says.

She says access to justice is a problem faced by the entire legal system, not just the family law bar. Simply finding ways to provide cheaper services is meaningless if people are not receiving the representation they need.

“Family law is not mechanical. It is not a simple area,” Boulby says.

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