Lawyers should embrace new breed of legal professional

By Paul Russell, LegalMatters Staff • A proposal to create a new type of legal professional called a Family Law Service Provider (FLSP) should be embraced as a way to provide legal services to those who cannot afford lawyers, says Toronto family lawyer Gene C. Colman, even though he thinks it doesn’t go far enough.

The idea for FLSPs came from a working group of the Access to Justice Committee of the Law Society of Ontario (LSO). That group released a consultation paper describing what it envisions as the purpose and powers to be given to FLSPs, with feedback welcome from the legal community until Nov. 30.

The paper followed a 2016 report from Justice Annemarie E. Bonkalo, who led the Family Legal Services Review. The report looked at whether the family justice system could be improved by expanding the delivery of legal services to providers other than lawyers.

The report found that 57 per cent of Ontarians did not have legal representation in family court in 2016 and that self-represented litigants do not fare as well as those represented by counsel. In addition, “the impact of self-representation can be felt not only by the parties, but by the overburdened court system as well,” the report stated.

‘Ontario’s family law system is broken’

“As Justice Bonkalo and others have noted, Ontario’s family law system is broken and it is failing to serve a large sector of the public,” says Colman, principal of the Gene C. Colman Family Law Centre.

“People earning $50,00 a year gross cannot afford a lawyer but they also do not qualify for Legal Aid,” he tells LegalMattersCanada.ca. “If they can have an FLSP come to a case conference or argue a motion for them, that hopefully will cost them only in the hundreds of dollars instead of the thousands of dollars that a lawyer will cost. They will be much further ahead.”

According to the information from the working group, FLSPs would be paralegals who have taken six to eight months of additional training in family law. The proposal spells out what legal duties they will be able to perform and which ones are beyond their level of expertise, but Colman says the two lists are confusing.

“I challenge anyone to make sense of the scope of practice section,” Colman says. “If this new position is created, FLSPs and their clients will have to look at it all the time to see when they can act and when they can’t.”

For example, he says there are various types of domestic contracts governed by the Family Law Act including marriage contacts, prenuptial agreements, cohabitation agreements and separation agreements.

Not allowed to do all contracts

“Interestingly enough, an FLSP is allowed to do most contracts, but not cohabitation agreements and marriage contracts,” Colman says. “That makes no sense. If you are going to allow them to assist members of the public in certain types of domestic agreements, and there is no difference in the degree of skill required, why have this exclusion?”

He also points out the proposal states that FLSPs cannot deal with property matters “where there is more than one home, or where there are equitable or trust claims, or claims for unequal division of property.”

That stipulation will cause problems in many separation agreements, Colman says.

“If people have a pension or RRSPs, then equalization of property will be an issue, and the FLSP will not be able to help them,” he explains.

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Colman says he would ideally like to see FLSPs allowed to perform almost any type of family law legal work, though he can understand why some lawyers and legal associations don’t want them given that power, considering the difference in education each brings to the table.

Paralegals are licensed after a two-year college course, he says, while lawyers usually complete a four-year undergraduate degree followed by three years of law school, then articling.

“Proper education and training is very important,” Colman says. “The work that family law lawyers do is often very complex. You do not have to be a tax expert yourself but you have to recognize a tax issue. Same with psychological issues or family dynamic issues, and you have to know when to bring in professionals as needed.”

FLSPs and racism

Due to systematic racism in our society, he says some Canadians in racialized communities face real barriers that prevent them from going to law school, adding the FLSP proposal would allow those people to gain some legal education and find employment within our family law dispute resolution system.

“Members of the public want to be represented by someone who understands their cultural milieu,” Colman says. “Canada does not have enough lawyers from minority communities to serve those people. So FLSPs are a timely solution to that issue.”

Lawyers should not fear losing business, he says, noting “there are enough people that want a lawyer representing them and who can afford their services,” he says. “We need to make more legal services available, for the good of the broader community.”

Another step needed

The biggest concern that Colman has with the FLSP proposal is that it bars FLSPs from representing parents in child protection hearings, which hurts minority communities the most.

“When it comes to the Children’s Aid Society (CAS) taking children away from parents that they deem unfit, racialized populations are unfairly targeted,” he says. “This is not just a matter of race and culture, but also of socioeconomic status.”

While CAS workers are doing what they believe is the best for the child, Colman says parents are sometimes held to too high of a standard.

“We should not be asking for perfect parents, just adequate parents,” he says. “Since the vast majority of CAS ‘clients,’ to use the agency’s term, are the bottom end of the socioeconomic ladder, many cannot afford a lawyer yet but they still earn too much to qualify for Legal Aid.”

To help these people, Colman recommends that accredited FLSPs be allowed to take additional courses and complete supervised training in order to represent parents in child protection proceedings.

“People currently caught in this system are like deer in the headlights, frozen in the centre of the road while a Mack truck heads toward them,” he says. “That is what it is like to be a litigant in our child welfare system. I feel very strongly that we need to help those members of the public.”