Association’s response to family legal services provider proposal: Overview | Sarah Boulby
Thursday, November 19, 2020 @ 3:11 PM | By Sarah Boulby
For many, a separation or divorce is the first time that they have had any contact with the legal system. Individuals seeking to navigate Ontario’s family law justice system encounter complex laws and procedures. Many are not legally sophisticated and do not have the resource to access their rights.
The TLA is committed to the reform of the family justice system to simplify it and to increase access to justice while protecting the vulnerable individuals caught up in that system. The TLA advocates for reform and in this response sets out a number of changes that would further these goals.
The TLA does not support the proposal of the Family Law Working Group to establish a new profession of family legal services provider (FLSP). This proposal will not be able to advance access to justice, may cause actual harm as currently constituted and will divert precious resources from other, more pressing access to justice issues.
The proposed FLSP model does not present a business case which would support the viability of FLSPs performing legal services for those who cannot afford lawyers. Additionally, there is no consideration of the potentially devastating effect on the practices of those members of the family law bar who currently serve low- and middle-income Ontarians.
It should be noted that because members of the family law bar practise in small firms it has traditionally been a point of entry to the profession for racialized lawyers and for all women lawyers where systemic discrimination barred access to other legal disciplines. Taking a step that forces many family lawyers out of business will have an immediate and negative impact on diversity in the profession.
The FLSP proposal presents a false dichotomy. The argument is that as this province has an access-to-justice crisis anyone who opposes the FLSP proposal is failing to meet that crisis. The Law Society of Ontario (LSO) has devoted significant resources over the last few years going down the path of trying to create the FLSP as a new profession without having done the basic work of analyzing or even considering the data as to whether this new profession will solve the access to justice problem.
The resources thrown at this venture have been diverted from pursuing reforms that would actually improve access to justice, reforms that are much needed. There is an opportunity now to stop pouring resources into the FLSP and to, instead, look at reforms that may make a difference and are more pressing.
The TLA has identified three broad areas of concern with the FLSP proposal. These are: (a) the failure to protect the public from unqualified practitioners; (b) the lack of a business case that the FLSP will provide services at a reduced cost; (c) the damage to the family law bar and the diversity of lawyer licensees.
This is part one of a five-part series. Part two: Protecting the public from unqualified family law practitioners; part three: More on protecting the public from unqualified family law practitioners; part four: No business case family legal services providers will charge less.
Sarah Boulby is chair of the Family and Estates Committee of the Toronto Lawyers Association. Practising family law since 1993, she advises clients on complex support, property and parenting issues, and she represents clients in court as well as in mediations and arbitrations. Boulby speaks and writes frequently on family law issues and is the author of educational material used by the Law Society of Ontario.
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