Breaking news today: The Law Society of Ontario (LSO), which is the regulatory body governing lawyers and paralegals in the province, has decided to create a new category of paralegals – called “Family Legal Services Providers” (FLSP) – who are eligible to serve a limited role in representing lower-income Family litigants. After undertaking only 260 hours of additional training and then passing an exam, FLSP licensees will be allowed to provide Family clients with a narrow range of legal assistance and representation.
In creating this new FLSP license, the LSO adopted the recommendations in a 97-page Report by its Access to Justice Committee. That Report focused on addressing the fact that Ontario Family courts are brimming with self-represented litigants who do not qualify for Legal Aid representation, and are seen as being left to fend for themselves in the Family Justice system.
By creating an FLSP license – as the thinking goes – eligible paralegals could step in to bridge some of the current gaps in the available resources and representation options for Family litigants.
This LSO innovation might sound great on paper. Not surprisingly, it has received some laudatory coverage in the media. But in our view, it’s a misguided step on a slippery slope, one that veers towards the very unwise expansion of legal services provided by non-lawyers.
Why? Because the Canadian Family Law system is highly complex. There is no such thing as a “simple divorce”. Even looking at the individual components of the divorce process (such as negotiation, drafting separation agreements, and resolving parenting time disputes) they all feature legally-complicated, emotionally and financially-intricate issues. Plus, there are very high-stakes outcomes for the individual litigants, as the process unfolds.
To competently handle these multi-faceted aspects, lawyers must undergo at least three years of intense legal training, plus an added period of apprenticeship. Some lawyers even embark on added focused learning, to obtain a Specialist Certification in Family Law from the LSO.
In contrast, the new FLSP license only calls for paralegals to undertake a paltry 260 hours (or about three months’ worth) of full-time additional study, before they are considered equipped to take on a narrow range of tasks.
With all due respect, that added three months’ of study is wholly inadequate. Granted, FLSP licensees would operate with a limited mandate; but even the most conscientious among them are very likely to make mistakes: Breaching Rules of Court, defying court Orders, and disobeying the Rules of Professional Conduct. Frankly, it’s inevitable for many reasons – not the least of which being the fact that FLSP licensees have less “skin in the game”, due to their vastly shorter professional training time, and the ability to charge lower fees.
There are also many nuances and ethical grey areas in Family Law that require in-depth legal training and expertise. These include situations involving conflict of interests, acting for both parties, and identifying a need for Independent Legal Advice. Again – even with the added few months of training and an exam – paralegals are unlikely to identify and properly address these.
The regrettable corollary, is that any “improvements” to access to justice will only be cosmetic than substantive – if there are improvements at all. In fact, it’s more likely that clients will be prejudiced. This means the public could lose confidence in the system, which in turn will bring the administration of justice into disrepute.
(And what happens when things go terribly wrong? Who are Family clients (and their paralegal representatives) going to call? Experienced, licensed, and fully-insured Family Lawyers – that’s who.)
Finally, there’s also a practical argument against creating a new FLSP license regime: It’s going to cost money. There will have to be a new regulatory structure, new training protocols, and a new set of educational resources created. This specialized class of paralegals will then have to be trained, policed and disciplined – all at the expense of the public.
In our view, these funds could be much better spent on improving and enhancing remote court hearings – because it’s a much more direct avenue for improving access to justice, especially for those who can least afford it.