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Sheila Gibb, Epstein Cole LLP

Proposal on family law service provider meeting resistance from some in Ontario legal community

Thursday, December 24, 2020 @ 7:59 AM | By Ian Burns


With the COVID-19 pandemic likely extending into 2021, the issue of access to justice is going to be front of mind for many in the Canadian legal community. And benchers of the Law Society of Ontario (LSO) will be grappling with that issue as they consider whether to create a special class of service provider to work in family law.

The family law service provider (FLSP) licence model proposed by the LSO would allow individuals to undertake a minimum six- to eight-month training program and then be able to offer legal advice, draft legal documents and be able to appear before a court or an adjudicative body. The licensee would be able to help out with divorces, parenting orders and decision making, child and spousal support and change of name applications, but would not be authorized to deal with matters involving child protection, adoptions, declarations of parentage and matters involving fertility law, and they would not be allowed to take on appeals.

LSO treasurer Teresa Donnelly has said the law society has to try and address unmet legal needs and “help the people of Ontario as much as we can for those who can’t afford legal services in family law.” But the response from some in the legal community is that the proposals would not likely do much to solve the access issue and the law society’s efforts would be better spent elsewhere.

In its submission to the LSO’s public consultation on the FLSP (which closed Nov. 30), The Advocates’ Society says the law society would be creating a new class of service provider “whose cost would remain out of reach for many,” noting the rates charged by non-lawyer service providers such as paralegals are not materially lower than the rates of many Ontario lawyers. They also argue there is a significant disparity between the training that paralegals and lawyers receive, and even a significant enhancement in that training would not adequately address that disparity

Sheila Gibb, Epstein Cole LLP

Sheila Gibb, a partner at Epstein Cole LLP and a member of the society’s board of directors, said research has shown that paralegals in Toronto charge in the range of $150 to $300 per hour, which is no different than large numbers of lawyers, even in Toronto.

“The reality is that Ontarians who are unrepresented cannot afford to pay any fees like this, whether to lawyers or any other type of provider — there is no room in their budget for this kind of cost. So, the gap remains unfilled,” she said. “Some of the most marginalized Ontarians will have the most complicated family law matters, for example where there is poverty, domestic violence, power imbalance, substance abuse, mental health problems and immigration sponsorship problems. If the family law service provider program proceeds, we are concerned a disproportionate amount of users will be from marginalized populations, including women suffering from domestic violence, racialized persons and new Canadians.”

Gibb said family law matters may seem intuitively simple because they are “close to home and heart” but they can be very complicated.

“Family law matters regularly intersect with other areas of law ranging from corporate law and tax law to criminal law and immigration law. A lack of knowledge or a failure to spot an issue can have catastrophic impacts on a client and family, and a main focus of law school is to teach lawyers to do that exact type of issue spotting,” said Gibb. “Family law issues touch the very core of people's lives — their home, their financial security, their emotional health and most importantly their children. There should not be a two-tier system.”

Frances Wood, Wood Gold LLP

And Frances Wood of Wood Gold LLP, chair of the Ontario Bar Association (OBA)’s family law section, said the FLSP model does not achieve the objective of supporting access to justice without compromising the quality of that justice.

“The model has several fundamental problems, including that it fails to reconcile that family law matters cannot be reliably identified as ‘simple’ or ‘complex’ at the outset, it does not provide a workable proposal for all justice participants to distinguish between in-and out-of-scope activities, and there is no indication that any costs could be saved or reduced for clients,” she said. “Access to justice is best achieved by supporting and enhancing access to justice initiatives that enable the public to access the proper legal advice and representation they need from lawyers, in addition to a variety of other services and supports from appropriate professionals wherever necessary, to help them resolve their issues.”

That objective, coupled with system-wide changes to simplify the court process and further support and encourage appropriate out-of-court resolution, is required to truly enhance access to justice for all families, said Wood.

“It is time to refocus the discussion on meaningful and actionable access to justice that is both affordable and meaningful for the people of Ontario,” she said.

Programs such as such as the advice and settlement counsel (ASC) project at the Superior Court of Justice in Toronto and the Pro Bono Students Canada family justice centre are helpful but for the most part the public doesn’t know they exist, said Gibb.

“We are asking the law society to direct its resources to create a centralized source of information, help educate the public about options, and build up and scale these fantastic projects across the province,” she said. “Other solutions to help advance access to justice include simplifying family law court processes, providing more resources to courts so timelines shrink, and increasing legal aid funding.”

And Gibb also acknowledged that some lawyers have been accused of being protectionist in their response to the FLSP proposal, but she said that is not a fair criticism.

“Our concerns with the possibility of non-lawyer service providers have nothing to do with our business prospects and everything to do with the fact that we want to find a real solution to family law access to justice issues,” she said. “Family lawyers want to increase access to justice, but meeting the need means meaningful solutions. We believe that other ways of allocating the finite resources that exist will better improve access to justice for Ontarians.”

LSO senior communications officer Jennifer Wing said the law society looks forward to analyzing the findings gathered through the call for comment and additional research it is doing.

“Feedback garnered through the process will assist the law society in considering the proposed framework and in assessing whether this model is the most effective approach to improve access to justice in family law services,” she said. “After detailed review, the results of the consultation will be presented to the access to justice committee which will make recommendations to Convocation regarding the FLSP licence.”

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.