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New legal services providers are welcome | Hilary Linton, Omar Ha-Redeye and Matilda Kissi

Thursday, September 24, 2020 @ 10:06 AM | By Hilary Linton, Omar Ha-Redeye and Matilda Kissi

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Matilda Kissi
As we discussed in part one, there is urgent need for a solution to the problem of access to justice in family law, especially for clients manoeuvring through the intersecting disadvantages of poverty, race, class, language, gender and violence. The family legal services provider (FLSP) would be a welcome solution for such clients, especially those further disadvantaged by COVID-19.

The FLSP would complement existing resources, particularly for communities caught in the “gap:” those who cannot afford lower-cost legal support but who are above the legal aid eligibility cutoff.

Legal Aid Ontario (LAO) is doing everything possible within its mandate and means. We know many skilled lawyers are serving victims of violence and other vulnerable clients on LAO certificates. We see the outstanding work done every day by duty and advice counsel.

But this resource is vulnerable to funding cuts and pandemic-related deficits and cannot meet the need. We know that victims of violence often need more legal support than is available.

Businesses and organizations providing resources for the unrepresented have grown exponentially and are another part of the solution.

But those who work with the most vulnerable, as lawyers, mediators and law clerks, can see that all these solutions are not achieving our aspirations for the unrepresented.

The fundamental message to those who cannot afford a lawyer remains the same: you are better off on your own than with the support of a trained, insured and licensed paralegal.

That is a tough message to continue to sell to the public at this time.

But the leadership of access to justice advocates in some other jurisdictions is inspiring.

For example, the Innovation for Justice program, the James E. Rogers College of Law (both at the University of Arizona) and the Arizona Supreme Court (see that court’s Task Force on the Delivery of Legal Services) will jointly launch a two-year pilot project in January 2021.

It combines trauma-informed experience of lay legal advocates with legal training specific to domestic-violence related issues. Championed by Karen S. Adam, superior court judge (Ret.), the project seeks to better support victims of violence who are unable to afford the legal help they need.

“This pilot is positioned to be a critical and groundbreaking step in the effort to significantly restructure legal regulation and innovate the delivery of legal services to improve access to justice,” said Stacy Butler, director of the Innovation for Justice program.

Will FLSPs cost less? There is no equivalent for comparison, but we suspect they will. We also think that FLSPs will help family lawyers, mediators and arbitrators innovate their own service delivery models in positive ways.  

Perhaps the training duration should be longer. We would like to see more focused training on trauma-informed practice and on nuances of power imbalance in mediation, arbitration and parenting co-ordination. It would be a better proposal, we feel, if each FLSP had a dedicated mentor in their first year of practice. And we would like to see an evaluation component built in.

But the subjects proposed to be taught are comprehensive, including substantial material on domestic violence and power imbalances, something not all family lawyers have studied. Indeed, lawyers are not required to study family law at all in law school.

Because it serves the public interest in more ways than we can count, we welcome the FLSP licence.

Indeed, the greatest risk we see is that of the project failing, not because it is a bad idea, but because it was not designed and supported to succeed.

FLSPs will likely need to work either as employees of or in partnership with family lawyers to have sustainable business models, given the number of things they will not be permitted to do. Creative thinking and collaboration with all stakeholders can create greater efficiency in family law services.

These new relationships can provide the community of mentorship and support needed for this project to succeed. And they will offer new opportunities for family lawyers, mediators and arbitrators, opportunities that will serve the public interest in diverse ways while strengthening the family dispute resolution field as a whole.

This is part two of a two-part series. Part one: Made-in-Ontario access to justice.

Hilary Linton is a Toronto family lawyer, mediator and arbitrator. She provides court-connected and private dispute resolution services. Omar Ha-Redeye is the executive director of the Durham Community Legal Clinic, which focuses on low-income and marginalized populations. Matilda Kissi is a senior family law clerk. She is a trained mediator with expertise in assisting and supporting clients navigating the difficult period of separation/divorce through the family court process.

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