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Parental benefits: one size does not fit all

Wednesday, May 15, 2019 @ 2:11 PM | By Lisa Feldstein


Lisa Feldstein %>
Lisa Feldstein
“Your Honour, before we begin I just wanted to apologize for my attire. I had a baby eight weeks ago and don’t yet fit back into my robes.” This is what I uttered at the beginning of a guardianship hearing in February 2018. No longer pregnant, it was not obvious why my robes didn’t fit and I didn’t want my open waistcoat to become a distraction or make me appear forgetful or sloppy.

Why was I doing a hearing less than two months after giving birth? I am a sole practitioner. I don’t have the luxury of maternity leave. I knew this when I started my practice in 2013 and I have no regrets. Many of us in law (particularly, but not exclusively, in solo/small firms) face the practical reality that our practices don’t — and can’t — stop just because we become parents.

I was incredibly fortunate that my husband was entitled to parental leave through his work (and if I’m being honest, he has more patience for babies than I do anyway). Through his support, the help of an articling student, working from home and bringing my infant to the office, I was able to spend six weeks of “maternity leave” working full time with my baby girl by my side. After that, it was business as usual.

There are some parental benefits available to lawyers in Ontario, but I was not able to take advantage of them after my daughter was born.

The benefits, provided by the Law Society of Ontario, came about in 2008. The Law Society of Upper Canada, as it then was, approved the parental leave assistance program (PLAP), which was recommended by its Retention of Women Working Group.

The idea was “to make it possible for more lawyers to maintain their practice after the birth or adoption of a child.” The goal, the website states, is to “reduce the hardship that arises when a practising lawyer who is a partner in a small firm or a sole practitioner takes parental leave.”

The PLAP is intended to help cover the cost of overhead and is also available for men.

But, in my respectful view, the program has a significant flaw. It caught my attention years ago, but the recent bencher election put the issue back on my radar as several candidates mentioned the PLAP in their platforms.

One of the eligibility criteria is that the lawyer cease to engage in remunerative work and law practice during the leave. This, frankly, is not possible for many solo lawyers. The requirement to completely stop practising is a barrier to the PLAP and undermines the purpose of the program.

It can be unrealistic and unethical for sole practitioners to stop practising entirely. Clients expect (and in many cases, deserve) to have their e-mails answered. Deadlines cannot always be deferred. The public interest is not upheld if, at a somewhat unpredictable date, I must abruptly stop practising law.

In the guardianship hearing that I attended, my client’s mother was at risk of losing heat in the middle of winter because she was mentally incapable of managing her property and not paying for her utilities. That was a problem that could not wait until after parental leave.

Also, that client had grown to trust me and would have felt abandoned if I passed her case on to someone else. Not to mention, it can be difficult to find a locum lawyer.

For lawyers outside urban areas, and those of us with niche practice areas, it can be totally unrealistic for someone to step into our practices and take over. Not to mention who incurs the cost of bringing the new lawyer up to speed? Clients don’t want to pay for that.

I am not one to complain without also offering a solution and, in this case, there is a simple path forward to make meaningful improvements to the program. My suggestion to the new benchers (some of whom are fortunately able to bring the solo perspective to Convocation) is to modify the PLAP criteria and remove the bright line prohibiting the practice of law.

Communication with clients or opposing counsel, for example, can be done one-handed from a phone with babe in arms.

Lawyers who meet the other eligibility criteria ought to be able to at least move files along so their clients continue to be served, and so they have a practice to return to when their leave, however long it may be, concludes.

My final comment is for those who question whether it is possible to practise law with a new baby. I can confirm that, with a good support system, it is possible. Many of my clients didn’t even know I had a baby. And those who did appreciated I took the time for them despite the demands of my new bundle of joy.

As for the judge — she nodded and we moved on with the case. I had worried about it for nothing. And thankfully I do now fit back into my robes.

Lisa Feldstein is a lawyer in the Greater Toronto Area with a focus on family health law at the Lisa Feldstein Law Office. She is an adjunct professor at York University, where she teaches health care law. Reach her at Lisa@lisafeldstein.ca.

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