Proposal gives paralegals ability to provide a narrow scope of services in family law
At Convocation today, the Law Society of Ontario approved a proposal for a family legal services provider (FLSP) license, which will allow paralegals to offer certain services in family law.
The proposal was the product of a consultation with the Ontario Superior Court and the Ontario Court of Justice, which had objected to a previously wider scope of practice for paralegals. Some Benchers argued that the resulting FLSP-license proposal before them was too narrow and would ultimately do little to alleviate family law’s access-to-justice crisis. Others responded that the measure opened the door to an expanded role for paralegals in the future, and a start was better than nothing.
A last-minute motion to create a formal process for LSO-judiciary collaboration was ruled out of order, and FLSP proposal passed with 37 in favour and 10 against.
“The goal of this license is to enhance access to legal services for the many family law litigants who do not have legal representation when they need it,” said Bencher Cathy Corsetti at Convocation. Corsetti brought the motion with Bencher Doug Wellman.
Corsetti told Convocation that she was asking them to support the motion, not because she thought that the scope represents all that paralegals are capable of in family law, nor because it will result in “great improvements” to access to justice, but because “it’s a start.”
“I am confident the FLSP license will expand over time,” she said. “And we have to start somewhere. I also don't think it's fair for the to the public that we debate this for another 6, 12, or 18 years, trying to find a perfect FLSP license that will raise no concerns or objections. Family Law litigants are desperate for help. Let us act now and start providing that help.”
In addition to approving the license, the motion contained a requirement that the Access to Justice Committee review the license within three years of its implementation.
The model approved by Convocation gives FLSPs the ability to assist clients with process navigation, which includes informing them of applicable court procedures and filing deadlines.
When it comes to divorces, the model allows FLSPs to complete the application for joint/uncontested divorces but does not permit them to do annulments, claims for corollary relief, motions to sever the divorce from corollary relief, and to act where a party resides outside of Canada.
For motions to change child support, the approved model allows FLSPs to complete the paperwork and argue the matter in court, if “income can be determined in accordance with an employer issued T4 slip and line 150 income.” FLSPs would not be able to handle “special and extraordinary expenses;” “deviations from child support amounts defined in the Child Support Guidelines;” or “income determination issues, including third-party experts.”
Under enforcement, the model allows FLSPs to respond to proceedings to enforce support payments, but not to bring motions for warrants for committal.
Sarah Boulby, a family lawyer at Boulby Weinberg LLP, and director of the Toronto Lawyers Association, says the FLSP model, as it was initially contemplated last winter, would have been a danger to the public because the scope of practice was too wide. While the narrowed scope approved today by Convocation would not risk harm to the public, she says it also will not put a dent in the access-to-justice problem.
“I don't believe that this proposal is going to be to make a difference at all because the very narrow scope – it's not unsafe – but these are literally tasks that somebody could do for themselves. You don't need to have legal training to fill out divorce forms.”
“I'm glad that at least this is done, because it has been – to my mind – a huge diversion of focus from actually trying to solve the access-to-justice problem,” she says. “For years now, all the Law Society work has been about family law service providers, which is not a solution, and not looking at what could be a solution.”
As for better solutions, Boulby suggests more mediation, unified family courts across the province, and more support for self-reps.
“We have a pilot project now that's going on of judicially directed, simplified cases, where the court is much more hands on, the judge is much more hands on. We need more of that.”
Another example of a more effective initiative is the administrative process that the Ontario Government has developed to change child support, she says.
According to the “Treasurer’s Report to the Access to Justice Committee,” the process leading to today’s approval of the FLSP license began in 2017, when Convocation approved the Family Law Action Plan. The Access to Justice Committee, with help from the Family Law Working Group and LSO staff, explored the appropriate scope of practice for a FLSP license-holder, and produced a report with four possible models for the FLSP license.
In February of this year, Convocation was supposed to debate the report, but then-Treasurer Teresa Donnelly took it off the agenda at the last minute after it became clear that the judiciary did not support what was under consideration. Agreement with the courts was necessary because, according to the Family Law Rules, a party may only be represented by a non-lawyer if the court gives permission.
Donnelly then discussed the FLSP license’s scope of practice with the Superior Court of Justice and the Ontario Court of Justice, and the consultations continued with Treasurer Jacqueline Horvat after she assumed the role. On Oct. 18, Chief Justices Geoffrey Morawetz and Lise Maisonneuve set out their proposed model in a letter to Treasurer Horvat.
Corsetti’s and Wellman’s motion asked Convocation to approve a framework for the FLSP license, based on the proposed model, which mirrored one of the four proposed in the Access to Justice Committee’s report, referred to in the report as the “Narrow Model.”
Before Benchers debated the motion and voted, Benchers Julian Falconer and Robert Burd raised a substantive motion without notice. Under the LSO’s By-Law 3, s. 93.4, a Bencher can bring a motion without notice, “if the motion relates to a matter then being debated at Convocation,” and is not “a substantive motion contained in a report of a standing or other committee.”
Part A of the Falconer/Burd motion called on Convocation to establish a protocol for a “transparent, formalized process for consultations and collaborations with the judiciary” when matters relating “to the regulator’s licensing mandate and the jurisdiction of the judiciary overlap and/or are jointly impacted.” Falconer and Burd proposed that the items before Convocation that are “the products of consultation and collaboration with the judiciary” be held in abeyance until the protocol is implemented. Their motion also requested that the motion proposing the judiciary protocol be heard and determined in camera.
Part B of the Falconer/Burd motion asked that the paralegal license be amended to include the scope of practice sought by the Corsetti/Wellman motion, and that “steps be taken” both to understand the data and evidence that the judiciary relied on to arrive at their proposed scope, as well as to determine what will be the resulting increase in representation in the family courts.
Treasurer Horvat ruled both parts of the motion out of order, and only the ruling on part B was appealable. Burd appealed, and Convocation voted to uphold Treasurer Horvat’s ruling.