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Increasing use of non-traditional legal services for family cases

Friday, October 11, 2019 @ 10:57 AM | By Rachel Birnbaum and Nicholas Bala


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Rachel Birnbaum
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Nicholas Bala
With the growing number of self-represented litigants in the family courts and the recent cuts to Ontario Legal Aid, there are increasing concerns about addressing access to family justice issues and developing innovative ways to provide legal services at lower costs. In response to these concerns, a project has recently been launched in Ontario to increase the use of such “unbundled” legal services as limited scope retainers, legal coaching and privately paid duty counsel for family law disputes.

While not suitable for or desired by some clients, the Internet has increased the amount of legal information available to the public. Many of those experiencing separation have the educational background, literacy and numeracy skills, and willingness to do at least a part of the work on their own but also need some legal advice, assistance or representation at certain times.

The Family Law Limited Legal Service Scope project is the result of an unprecedented collaborative effort of the Ontario family justice community. The project has an advisory committee chaired by Tami Moscoe, senior family counsel at the Ontario Superior Court, and membership that includes representatives of the Ontario Bar Association; the Federation of Ontario Law Associations; the Association of Family and Conciliation Courts — Ontario Chapter; The Advocates’ Society; and the Family Lawyers Association.

Also involved in the project are family law practitioners with extensive experience in providing these types of services, including Lisa Eisen of Family Law: A La Carte. The Law Society of Ontario and the Ontario Lawyers’ Professional Indemnity Company have also been supportive.

The project has received a $250,000 grant over three years from the Law Foundation of Ontario and has hired a senior project manager, Helena Birt, who had a key role in establishing Ontario’s family duty counsel system. There is also a research component to the project: the principal investigator is Rachel Birnbaum and the co-investigator is law professor Nicholas Bala.

The project is intended to both increase the capacity of the family bar to provide unbundled legal services and to stimulate demand by increasing awareness of the value and availability of such services through education efforts directed at the judiciary, mediators, Legal Aid Ontario staff and trusted intermediaries, as well as the public.

The project is facilitating access to and use of the services through its website, familylawlss.ca. The website allows prospective clients to search for a lawyer willing to do this type of work by the location of the lawyer and the type of services provided. Virtual services are also provided by some roster participants.

Over 300 Ontario lawyers have already taken a two-hour free training program (available online and in person) that allows them to be listed on the roster. The lawyers must also have a minimum of three years in practice and at least a third of their caseload must be in family law. The training program focuses on managing this type of practice and covers newly developed best practices, including setting clear and realistic client expectations and having a clear retainer agreement.

Although some lawyers have concerns about potential liability issues from providing advice or services for just one part of a case, experience in other jurisdictions suggests that there is no greater risk than for full representation. Research from other jurisdictions also suggests that lawyers find more satisfaction from providing limited scope services and that many clients appreciate the opportunity to reduce their costs and have greater responsibility for the resolution of their own disputes.

The project continues to develop and support implementation of different models of affordable, limited scope legal assistance for people in Ontario with family law disputes. The services to be promoted include unbundling family legal services, such as providing drafting services for court documents or in-court representation for a single appearance, and family legal coaching, where the lawyer assists the client by offering advice, guidance and support.

In Barrie there is also a pilot private duty counsel service, where lawyers on a rotating schedule provide assistance at family court for an hourly fee for unrepresented litigants not eligible for legal aid. If other local family bar associations are potentially interested in developing a similar program, they are encouraged to contact Birt at helenabirtlaw@gmail.com.

In order to effectively evaluate this project, the researchers will be interviewing lawyers, judges and clients in Ontario about their perceptions of the advantages and value of these types of services, as well as its limitations and how service delivery can be improved.

While the Ontario project is unique, it is believed that there are many lawyers across Canada who already provide these types of services. The research team invites lawyers inside and outside of Ontario who have undertaken this type of work in family cases or are considering doing so to complete an online confidential survey that can be accessed here.

The survey takes about 15 minutes to complete.  

The results of the research will be published. It is hoped that this research will help improve access to family justice by providing greater access to affordable legal services.

Rachel Birnbaum is a professor of social work, cross-appointed to childhood studies (interdisciplinary studies) and social work at King’s University College at Western. Nicholas Bala is a law professor at Queen’s University in Kingston, Ont.

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