Protecting the public from unqualified family law practitioners | Sarah Boulby
Wednesday, November 25, 2020 @ 2:43 PM | By Sarah Boulby
Part two will address, in detail, one reason why the TLA does not support the creation of the new profession: the fundamental obligation of the Law Society of Ontario (LSO) to protect the public from unqualified practitioners.
The LSO’s consultation paper on the family legal services provider (FLSP) offers a good review of the many areas of knowledge required to practise family law, including advocacy skills, contract drafting skills and negotiation skills, as well as knowledge of substantive areas of law including: family law legislation, rules, and regulations; contract law; real property law; corporate law; restitution; income tax; evidence and so on.
While access to justice issues in family law may be more pressing than other areas of law, the FLSP proposal must be balanced against the fact that family law is one of the most complex areas of law. The consultation paper proposes that the FLSP practise most areas of family law. That is, that these providers advise clients on their rights, negotiate and draft contracts, argue motions, including motions for summary judgment and conduct trials.
There are narrow restrictions, but these providers are to be licensed to act in parenting disputes, and to deal with valuable assets including private businesses, RRSPs, matrimonial homes and other property. This goes far beyond what was proposed in Justice Annemarie Bonkalo’s “Family Legal Services Review” (the Bonkalo Report), which recommended that paralegals for example be restricted from acting in cases involving property and spousal support, as well as being restricted from representing clients at trials and from drafting domestic contracts “except where they are the result of mediated negotiations and are drafted in conformity with a mediated agreement.”
All licensed lawyers in Ontario must learn the basic principles of family law legislation and jurisprudence, which is a required part of the curriculum for the bar examination. Practising family law requires knowledge of other substantive areas of law that form a core part of a law school education including contract law, business organizations, tax law, bankruptcy law and criminal law.
What may appear to be simple tasks, such as preparing a financial statement for the purposes of determining support and equalization, require broad legal knowledge. The lawyer needs to identify the assets (including contingent assets), understand the nature of ownership of the assets and identify taxes and other contingent liabilities. The lawyer needs to understand how income is calculated for support law purposes for salaried individuals and those who own closely held corporations, which include a large share of small business owners in this province.
LawPRO describes family law as “one of the most complex practice areas involving dozens of federal and provincial statutes and voluminous case law.” It comes as no surprise then that according to LawPRO, “[f]ailure to know or apply the law is twice as likely to occur in family law than in other areas of practice.” (see the “Family Law Malpractice Claims Fact Sheet”).
These are the challenges experienced by licensees with law degrees. How can we expect family law service providers with far less education to practise effectively in this field?
The consultation paper assumes that after a two-year paralegal training program which, as the Bonkalo Report notes, does not provide any curriculum to prepare paralegal candidates to deliver legal services in family law, the areas of knowledge an FLSP will need can be taught in six to eight months, with a field placement of two to three months.
If it were, in fact, correct that it is possible to reach competency in the diverse areas of knowledge FLSPs must learn after a two-year college program and six to eight months of study, then it would not be necessary for lawyers to obtain a three-year university degree in law followed by articling or the Law Practice Program to achieve competence on the same material.
In reality, it is not possible to learn these areas and to become competent based on the limited education program proposed in the consultation paper. It is possible for some rudimentary principles to be absorbed but not for any understanding sufficient to advise and represent clients.
It is not possible for individuals educated in this cursory fashion to understand how to learn and apply the law as it evolves and changes. Law school teaches lawyers how to research and learn the law on an ongoing basis. The FLSP will lack that basic skill, as legal research is not mentioned as part of the proposed curriculum.
Where there are restrictions on FLSPs it is difficult to understand how they will be monitored. For example, an FLSP will not be educated in restitutionary principles and not permitted to advance an unjust enrichment claim. How will the FLSP spot the issue that a client may have an unjust enrichment claim and know that they must be referred to a lawyer if the provider does not have a proper (or any) understanding of restitution in the first place?
This is part two of a five-part series. Part one: Association’s response to family legal services provider proposal: Overview; 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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