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Made-in-Ontario access to justice | Hilary Linton, Omar Ha-Redeye and Matilda Kissi

Tuesday, September 15, 2020 @ 2:37 PM | By Hilary Linton, Omar Ha-Redeye and Matilda Kissi


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Hilary Linton
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Matilda Kissi
Ontario was the first Canadian jurisdiction to regulate paralegals and the first to permit them to practise independently.

It is fitting then that Ontario’s law society has proposed an innovative response to the universally acknowledged access to family law justice problem: a new Family Legal Services Provider (FLSP) licence.

We welcome this concept for its creativity and credibility.

Numerous esteemed jurists, academics and professionals in Ontario have been recommending versions of this solution since 2000. The need has only become more urgent since then.

Those of us who work with low income populations, victims of violence, or who work as mediators and arbitrators know that many of our clients want but do not have (enough) legal support in the current system.

Every family mediation or arbitration without adequate legal support is a suboptimal process.

Even when clients find an affordable lawyer for advice on a mediated settlement, those counsel are often not able to offer what the client needs without a retainer and comprehensive review. The fee to do this competently, even at the low end, is too high for many.

Several of those who cannot afford a lawyer have additional needs. Clients navigating the intersecting disadvantages of poverty, race, class, language, gender, violence — these are the clients who stand to benefit most from this new legal option.

And, as Justice Annemarie Bonkalo notes in her extensively researched and comprehensive 2016 report, the barriers to legal support are not just financial:

“Issues relating to geography, culture and language deepen the need for consideration of other options. While opportunities for representation may abound in Toronto (legal costs notwithstanding), the availability of lawyers decreases dramatically in more rural and remote areas.

“Even in Toronto, finding a legal representative from one’s own cultural background or who speaks one’s own language presents challenges for many. Because each individual is unique, with a unique set of circumstances such as race, income, education, literacy, language, religion and geographic location, it is important to keep in mind how these different variables may affect a person’s access to legal services in family law.

“Every individual should have the opportunity to choose service providers who can meet and respond to his or her unique needs.”

It is in all our best interests to facilitate the most diverse range possible of qualified and competent legal professionals to help all clients navigate this difficult and emotional period in their lives with as much ease as possible. 

As the FLSP Call for Comment notes, the proposal is timely.

Growing numbers of unrepresented clients have been further disadvantaged by COVID-19. The FLSP licence is a complementary enhancement to the innovations in family law that have developed over the past several years, including the Family Law Limited Scope Services Project and the Advice and Settlement Counsel (ASC) in Toronto.

But to put things in perspective — the hourly rate for ASC legal advice is $200, a fee that is considered a bargain. Few of the clients needing that service can afford that kind of money. When they can, it is often on a limited basis. FLSPs will offer new ways to reach communities that are in the “gap,” unable to afford the $200 rate and just above the legal aid eligibility cutoff.

This is part one of a two-part series. Part two will discuss what is being done to help vulnerable clients and the unrepresented, and it will offer some recommendations.

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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