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Just who should deliver family legal services in Ontario? | Pamela Cross

Tuesday, July 14, 2020 @ 11:55 AM | By Pamela Cross

Pamela Cross %>
Pamela Cross
In late June, the Law Society of Ontario released a consultation paper on the Family Legal Services Provider (FLSP) Licence, seeking input from stakeholders about the components of the licensing framework as well as contextual information to help determine “the effectiveness of the licence in addressing access to justice needs.”

This paper is the result of a (so far) four-year process that began when the then-attorney general of Ontario and the then-treasurer of the Law Society appointed Justice Annemarie E. Bonkalo to lead a review of family legal services. Her review confirmed what many of us already knew: more than half those involved in family court proceedings in Ontario did not have legal representation, which had a negative impact on their cases as well as on the court system itself.

Among her recommendations was that the law society develop “a specialized licence for paralegals to provide legal services in family law.” Understandably, this recommendation was met with a powerful and mixed response from lawyers, legal clinics, litigants and other stakeholders.

The current consultation paper reflects work done since the Bonkalo Report was released in late 2016, including the 2017 decision of Convocation to approve the licensing of paralegals and “others with appropriate training” to offer “some” family law legal services and to assess “what additional family legal services by providers other than lawyers, and including advocacy, are in the public interest.”

As Luke’s Place Support and Resource Centre, where I am the legal director, and the Barbra Schlifer Commemorative Clinic commented in May 2017, we have been concerned throughout the process about the apparent lack of attention being paid to family violence: “These cases make up some of the most serious that move through Ontario’s family courts: serious in terms of immediate and long-term physical and emotional safety for litigants and their children and serious in terms of legal outcomes that can impact a family for many years into the future.”

At that time we argued for, among other things, a cautious approach towards licensing of paralegals: “[M]any of the women we serve who do not qualify for legal aid and cannot afford a lawyer would also be unable to afford to pay for a paralegal ...

“[A]ny issue in a case involving family violence is complex because of the dynamic of the abuse, which continues long after separation. These cases require a specialized response. ... We do not believe that paralegals generally would bring the level of legal education that these cases require ...  [which] could lead to the ongoing increased risk of harm to survivors of family violence and their children.”

I am disappointed that the current consultation paper does not address the issue of family violence more directly and in greater depth.

In particular, I am concerned that the scope of permissible activities may extend to delivering legal services related to parenting orders and decision making. Post-separation arrangements for children are often a lightning rod for an abuser, who uses the threat of taking the children as a means of intimidating his former spouse and manipulating her into agreeing to outcomes that are not in the best interests of the children or safe for her.

Very little mention is made of domestic violence in the competencies set out for FLSPs under the proposed new regime. Further, there does not appear to have been consultation with subject experts (i.e. survivors of family violence and those of us who work with them in the family law context), nor any indication that our expertise might be used in the development and delivery of training.

Many of us support — cautiously — this move towards licensing paralegals to provide some family legal services in some contexts. However, the unique issues faced by survivors of family violence must be front and centre as the next steps are undertaken.

I look forward to the current consultation process recently announced by the LSO. It is imperative that the voices of survivors as well as those who provide legal supports, including but not limited to legal representation, for women fleeing abuse to be included in the discussions so we can move ahead collaboratively in a direction that protects the interests and well-being of these vulnerable Ontarians who turn to family law for assistance.

Pamela Cross is a feminist lawyer who works on issues related to violence against women and the law.

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