In an effort to increase assistance for family law litigants who do not have legal representation (self- or unrepresented litigants) and to assuage the concerns of the family law bar, some members of whom object to the introduction of paralegals into family law, at the same time, the Law Society of Ontario has proposed a new licencing framework, one limited to the provision of legal services in family law and one most likely to be taken up by existing paralegals. The LSO has invited comment on the entire proposal (see Family Legal Services Provider Licence Consultation Paper (“FLSPL Paper”); however, apart from a brief summary of the FLSPL Paper to provide context, my own comments here are limited to consideration of the education plan included in the proposal.
The proposed framework is a response to the Bonkalo Report (December 2016) resulting from the Family Legal Services Review conducted by Justice Bonkalo. The review confirmed the majority of family law litigants do not have representation; self-represented litigants are disadvantaged compared to represented litigants, with less successful outcomes at all stages of a family law matter, whether motions, applications or trials; and the system itself is faced with challenges related to the high numbers of litigants who do not have representation. All these findings are similar to those in prior studies over several years.
While there may be several reasons why family law litigants are unrepresented, the most commonly cited one is that these individuals cannot afford lawyers. They may not qualify for legal aid, even if legal aid is available for the particular matters in their dispute, but their economic situation precludes being able to hire a lawyer, at least throughout their case. Paralegals (who may or may not be affordable) have not been allowed to provide services in family law.
As the LSO’s FLSPL Paper states, “Justice Bonkalo made a number of recommendations directed at the Law Society relating to the creation of ‘a specialized licence for paralegals to provide specified legal services in family law.'” (FLSPL Paper, p.2) In Justice Bonkalo’s view, allowing paralegals to offer family services under the supervision of family lawyers would not help advance access to justice, but if paralegals are to offer family services independently, they must be adequately prepared to do so. She also said, “As important as creating a specialized licence is the need to clearly delineate the areas within family law in which paralegals should be able to provide services.” Her recommendation was that “paralegals be permitted to provide a complete spectrum of services in prescribed areas of family law that are typically (but by no means always) less complex than others”. (Bonkalo Report, Recommendations 4-9, np)
Following cooperation between the LSO and the Ministry of the Attorney General on how to address the problems in family law accessibility, “[i]n December of 2017, the Law Society’s Convocation approved the Family Law Action Plan, which was the Law Society’s contribution to the joint action plan with the Province.” Included was the development of a specific legal services licence as follows:
1. A licence for licensed paralegals and others with appropriate training to offer some family law legal services. Recognizing the urgency of the need, this [new family legal services] licence will support training in process navigation, form completion, investigating forms such as financial, motions to change, and uncontested divorces, and possibly other areas outside the courtroom context.
2. At the same time, assess what additional family legal services by providers other than lawyers, and including advocacy, are in the public interest, and consider how to develop a further expanded licence, following resource-related discussions with government. (FLSPL Paper, p.3)
Subsequently, the Family Law Working Group (FLWG), a subgroup of the LSO’s Access to Justice Committee, composed of lawyers practising family law and paralegals with litigation experience, considered the development of a specific licence to allow paralegals to provide family legal services by focusing on
1. Scope of permissible activities.
2. Competencies (the knowledge, skills, and abilities required to carry out the permissible activities).
3. Education, training, and assessment based on the identified competencies. (FLSPL Paper, p.3)
The principles underlying the future licence were access to justice (that it meets unmet needs in family law), protection of the public and viability of practice, including “that the training requirements are attainable”). Also justifying this new licence is the assumption that paralegals’ billing practices differ from those of lawyers (particularly lawyers’ hourly billing and higher rates), making them more affordable for people who otherwise would be unrepresented.
During the two years spent in developing the proposed licence, the FLWG met with various experts and practitioners and took into account the initiatives in family law since 2016, including the LSO’s “Family Law Limited Scope Services” project, designed to increase “limited scope retainers, legal coaching, and summary legal counsel” and the changes to come into effect in March 2021 in areas under federal jurisdiction, as well as developments in other jurisdictions (FLSPL Paper, pp.5-6). Those holding the new licence (called “family services providers”) would not be able to provide services in all areas (that is, they would not easily be able to substitute for family law lawyers); rather, the scope of permitted activities was based on the following factors: “area of need, frequency, level of risk, level of conflict/complexity and teachable in the proposed training program” (FLSPL Paper, pp.6-7).
I will not replicate the details of the FLSP services, areas of practice (and those “out of scope”), circumstances under which the holder of the licence would not be allowed to act under any circumstances or the competencies the licence holders must meet. Both services and areas of practice are broadly identified; the areas excluded are if income determination is involved; third-party experts (with some exceptions) or valuators; relocation/mobility; and cohabitation agreements and marriage contracts. (A detailed table of permissible and out of scope areas is found in the FLSPL Paper, Appendix B, Tab 5.2.) The family services provider cannot deal with more than one home or where a claim is for unequal division of property. Of course, the exclusions mean the list of permitted areas is not as broad as they may seem. For example, while “parenting orders and decision-making [custody and access]” are permitted areas, they are not permitted if a third-party expert, such as a child psychologist, or relocation is involved): this is reinforced by the areas in which the licence holder is not permitted to act under any circumstances, which include “matters overlapping with an area that is out of scope for the FLSP licence”.
The list of competencies builds on those already required of paralegals “with an emphasis on specific skills required to provide family legal services”; there are 209 competencies in 8 areas: ethics and professional responsibility; knowledge of the law; substantive family law; problem, issue identification, analysis, and assessment; alternative dispute resolution; litigation process; practice management issues; and prohibitions. (FLSPL Paper, p.8) (A detailed table is available in the FLSPL Paper, Appendix C, Tab 5.3.) I refer to more specific competencies in relation to my discussion below of courses to be included in the training program.
As for preparation of the licence holders, the program as developed to this point will take 6 to 8 months full-time (20 hours a week of instruction) or one year on a part-time basis of 10 hours a week. It “is informed by the Law Society’s paralegal education framework and has been supported by an environmental scan of family law education programs for law students, law clerks, family lawyers, and others” (FLSP Paper, p.8). (Current paralegal education programs are largely prescribed by the Law Society of Ontario.) The program may also include a requirement of prior paralegal experience and/or a placement, a licensing examination and Continuing Professional Development.
Many, if not most or all, of the potential entrants to the program will have already pursued a paralegal education. For example, Humber College offers a four-year Bachelor of Paralegal Studies program, as well as other paralegal programs (disclosure: I served on a review panel for renewal of this program’s accreditation and therefore am using it to consider the relationship between training for paralegals for all other areas of law and their training to offer family law services). (There are many other paralegal programs at colleges in Ontario, such as Seneca, Durham and Centennial, among others, although they are all shorter than the four year applied degree at Humber.) The Humber Paralegal Studies degree does not offer family law because paralegals cannot provide family law services, but it does offer a wide range of courses analogous to those offered at law schools. Nevertheless, the proposed family legal services provider program is far more detailed, except perhaps in the generic competencies, than any area under the Humber program. It is understandable that current paralegals require additional training in family law. In the normal course, students studying to be paralegals would expect to learn family law as they now do criminal law or law practised before tribunals, for example.
Having created the family legal services provider licence, with its more extensive requirements than any area under current programs, it is difficult to imagine that the LSO would subsequently allow the incorporation of a very detailed family law program into the existing course requirements for future paralegal students. If that’s the case, even future paralegals who have already spent time and money gaining their paralegal accreditation would have to then go through another program, expending time and money in order to offer limited services in family law. The use of the specific label, “family legal services provider” (FLSP) suggests this is meant to be a distinct speciality, perhaps more carefully aligned with the practice of family lawyers than other areas of paralegal practice.
The proposed mandatory courses listed in the FLSPL Paper at Appendix D, Tab 5.4 have been provided in the context of a Request for Information “for the purpose of gathering information from accredited teaching facilities about the delivery of an educational training program for the Family Legal Service Provider (“FLSP”) Licence, in the context of a broad consultation on the licensing framework”.
Obviously, the required courses must reflect the expected competencies. It is not my intention to discuss the identified competencies, except in passing, but rather to indicate where I believe the courses listed fail to align with at least some of them.
Although “declin[ing] to act when a matter is outside the permitted scope of practice” is an “entry-level competence” for paralegals, the distinction between permitted and non-permitted activity and areas of practice for paralegals has been more clearly established up to now. However, the distinction between activities “within scope” and those “out of scope” is more complicated under the proposed FLSP licence. And, of course, acquisition of an FLSP licence does not extend the FLSP’s scope of practice beyond the permitted activities for a P1 licence under Bylaw 4. (See, for example, the injunction that a paralegal “does not act where there are issues outside of the current scope for paralegals as articulated in By-law 4 [Prohibitions (Practice Restrictions), 8.1.208].
The curriculum for the FLSPL program must satisfy the following criteria: allow the acquisition of required competencies and must reflect the permitted services and areas of practice specific to the provision of family legal services contemplated by the FLSPL. I use an example of a course that is included, a course that may only partially satisfy these criteria and suggest two courses that would more fully prepare FLSPs for the current conditions of practice.
The included course is “Intimate Partner Violence” (“IPV”). (IPV is not listed independently as a permitted service, but presumably is included because it might be a crucial element of familial relationships.) The list of courses does not include details about content and therefore there are certainly matters that do not appear in the information provided that might well be included in an IPV course. However, some idea of what is expected and the relationship to family legal services practice can be discerned from the list of competencies. Thus one competency is as follows:
identifies power imbalances, domestic abuse, or intimate partner violence. (Substantive Family Law [Victims of Domestic Abuse and Intimate Partner Violence], 3.12.126)
Although intimate partner violence (IPV) is a matter of substantive law, signals indicating IPV need to be identified where it exists, even if not raised explicitly. The ability to identify these signals should be considered as a competence, indicating that it should be included in course content. There are two additional issues here, however.
The first is what to do if a FLSP is concerned about whether a client is experiencing IPV. The question is, “what to do about it?” Another competency appears to answer this question in the appropriate case:
recognizes urgency and takes emergency steps where necessary (e.g., refraining orders, restraining orders, and preservation orders). (Problem, Issue Identification, Analysis, & Assessment [Information Gathering, Case Analysis, and Planning], 4.1.145)
(The entry-level competencies include the more general “Recognizes urgency and takes emergency steps where necessary” under Information Gathering, Case Analysis and Planning, 139.)
Yet if the FLSP has also recognized that the actual issue the potential client has raised is outside the scope of the FLSP licence, they must cease acting. A competency is that the FLSP
understands and identifies, initially and on an ongoing basis, when domestic abuse and intimate partner violence issues are out of FLSP scope and declines to act or continue to act. (Substantive Family Law [Victims of Domestic Abuse and Intimate Partner Violence], 3.12.125)
The second issue, then, is that the competencies do not appear to address what the family legal services provider should do once declining to act, except in the general sense: when matters are outside the scope of the paralegal’s licence under Bylaw 4 or under the FLSP licence, the family legal services provider must
“decline to continue to act and refer the matter to a lawyer where issues arise during the course of the retainer that are outside of the scope of permissible practice” (Prohibitions [Practice Restrictions], 8.1.208].
It would be more appropriate if prior to ceasing to act, the competent FLSP were expected to advise the individual about resources to access to address the issue (that is, it be included in the competencies, with some information about sources included in the course).
My example of a course that partially satisfies the criteria is “Indigenous Family Legal Services”, recognizing that this is an area with distinctive characteristics and legal requirements. There are no other courses reflecting the range of clients with whom a FLSP may deal. Paralegals may have been exposed to the relevant Indigenous issues during their earlier education, but they won’t have been exposed to how they play out in family law. At the same time, the course highlights that family issues may take different forms in different cultural or other communities, even if not the subject of legal requirements. Taking both the specific Indigenous course and the more general recognition of cultural (and other) differences, there are a number of entry-level paralegal competencies relating to cultural issues under Ethics and Professionalism (the numbers are the numbers under the entry-level competencies):
47. Recognizes how cultural differences may impact interactions between lawyers, paralegals, clients and others from diverse cultural groups.
48. Analyzes how cultural differences may impact interactions between lawyers, paralegals, clients and others from diverse cultural groups.
49. Adjusts perceptions and behaviours to respond to lawyers, paralegals, clients and others from diverse cultural groups.
50. Implements appropriate policies and practices that support the integration of cultural diversity, equality, and inclusion in the provision of legal services.
It needs to be clear that cultural, religious and similar factors play out in particular ways in family disputes and the competencies expected under the FLSP licence reflect this:
recognizes, and is sensitive to, the client’s circumstances, special needs, and intellectual capacity (e.g., diversity, language, levels of literacy, socioeconomic status, disability, health). (Ethics and Professional Responsibility, Ethics and Professionalism, 1.1.2) understands the impact of involving third-party authorities, such as police or a Children’s Aid Society, and the duty to report. (Ethics and Professional Responsibility, Ethics and Professionalism, 1.1.5) understands diversity (e.g., culture, religion, nationality) and its potential impact in family law matters (e.g., religious barriers, advice on barriers to remarriage,
parenting). (Ethics and Professional Responsibility, Ethics and Professionalism, 1.1.13)
applies the principle of “best interests of the child” based on legislation and case law (e.g., contact issues, child’s wellbeing, parental conduct, bonding, stages of child development, special needs, religious and ethical upbringing, financial needs, sibling separation, special considerations for First Nations, Inuit, and Métis children). (Substantive Family Law [Parenting Orders and Decision Making, including Motions to Change], 3.1.37) demonstrates awareness of the impact of self-governance and customary laws on Indigenous communities, including inherent jurisdiction, self-government agreements, and law/by-law making authority (e.g., customary marriages). (Substantive Family Law) [Indigenous Issues in Family Law], 3.14.138) addresses potential power imbalances in alternate dispute resolution. (Alternative Dispute Resolution) [Alternative Dispute Resolution], 5.1.155
Although FLSPs are expected to show competence in relation to cultural and other issues that might arise, there is no course, other than in relation to Indigenous Family Legal Services, that addresses how to identify or learn about these issues. And there is not a course in the education for paralegals more generally that concentrates on these issues. These concerns loom large today, as the LSO’s own policies reflect, and deserve explicit consideration; it is not possible to identify all the relevant issues, practices or experiences, but it is possible to provide guidelines to assist paralegals in how to identify them or how to raise them with clients.
My last two examples, courses that are not but might usefully be included, relate to the use of technology and helping clients benefit from the assistance of other workers in the legal system (other than lawyers).
The use of technology involves not only the FLSP’s own technological competence, which is minimally referred to under Practice Management Issues (7.1.196), but also the client’s relationship to technology, which may influence how the FLSP communicates with the client, the extent to which a client may be able to undertake certain tasks or other matters. (This is not addressed in the competency about |appropriate communication strategies for the client” [Ethics and Professional Responsibility, 1.1.3].) Technological accessibility is also relevant to other factors FLSPs are meant to take into account, whether particular forms of disability, access to computers or broadband and other matters. The FLSP also needs to know how to communicate with clients who may be experiencing IPV. Whether these issues are addressed in a separate course or throughout the program, knowledge in this regard should be identified as a competency.
FLSPs should be aware that there may be other legal actors who may be of assistance to their client in the appropriate circumstances, such as “trusted intermediaries” or “community justice help” (for a recent consideration of the latter, see Community Justice Help: Advancing Community-Based Access to Justice). This is different from “engaging experts” or “advising about available resources” (see Problem, Issue Identification, Analysis, & Assessment [Information Gathering, Case Analysis, and Planning], 4.1.147 and 4.1.148) or acknowledging that the matter may be beyond the FLSP’s abilities (see Practice Management Issues [Practice Management], 7.1.199), but refers to being able to connect clients to others in the system who may be able to relate more effectively. Knowing how to do this should be a competence, with a course that, again, is more about providing guidance on how to do so rather than substantive information about various intermediaries or community justice workers.
A significant number of members of the family bar have been opposed to allowing paralegals to practice family law, even under supervision. The introduction of the family legal services provider licence would both separate the FLSP from the “ordinary” paralegal and from a family lawyer: the first because it requires existing paralegals and probably future paralegals to undertake subsequent training after their initial education if they want to offer family legal services and the second because the scope of family legal services is limited to the extent that even inside scope services or areas are off limits if issues identified as out of scope arise initially or during representation by a FLSP. The competencies required must address both the substance of family law, as well as all the ancillary issues that arise in practice, and to some extent duplicate the paralegal education already in existence. The same is true of the training for the FLSP licence.
For the most part, the proposal satisfies these requirements; however, there are possible improvements that would allow the the FLSP to develop a more effective relationship with the client and provide a more comprehensive degree of assistance, even in cases in which they cannot act.