Yours to Discover: The Lack of Evidence Supporting the Conclusions Reached by the LSO Paralegal Licensing Report

On June 26, 2020, the Law Society of Ontario (LSO) released the Family Legal Services Provider License Consultation Paper (FLSPL) for review and comment by the legal profession in Ontario. Prior to the release of the FLSPL the LSO had released the Ontario Civil Legal Needs Project Steering Committee’s Report to Convocation entitled “Listening to Ontarians”, which in May of 2010 reported to Convocation that the Committee had identified access to justice as a significant issue facing the public in Ontario.[1]

Access to justice in the area of family law is an issue. Access to justice is an issue that requires urgent attention and paralegals should be involved in the solution. However, the recommendations contained in the FLSP License Consultation Report to Convocation are not the solution to the problem.

The solution to the issue of access to justice in the area of family law is not too simply expand the number of licensed professional offering services to the public. Rather, the solution to the issue lies in adopting one of the options outlined below, that carves out a role for paralegals, to address the issue.

Before addressing what we see as the solution to the problem it is helpful to understand how the FLSP License Consultation Report came to be. It is helpful because the background provides the context for the Report and ultimately the recommendations contained in the Report.

On February 9, 2016, the Ministry of the Attorney General (MAG) requested that the Chief Justice of the Ontario Court of Justice, the Honourable Justice Annemarie E. Bonkalo, undertake a Family Legal Services Review and submit a Report that contained her findings and recommendations in regard to how family legal services could be provided by persons other than lawyers. In response, on December 31, 2016, Justice Bonkalo, submitted her Report to then Attorney General, Yasir Naqvi, and then Treasurer of the Law Society of Ontario, Paul Schabas, which was entitled “Family Legal Services Review”[2].

Following Justice Bonkalo’s Report the LSO and MAG jointly committed to an action plan to improve access to family legal services[3], which led in December of 2017, to Convocation approving the Family Law Action Plan (FLAP). It also led to Convocation approving the development of a license for paralegals and other legal service providers to be able to provide services to the public in the area of family law.[4]

The FLAP and the approval of a license was at the time the LSO’s contribution to the joint action plan with the Province of Ontario.[5] After Convocation approved the FLAP and a license, the LSO tasked its Family Law Working Group (FLWG) with developing what the FLSPL Report terms a family law service provider license (FLSP License)[6], which led the FLWG to develop the FLSP License Consultation Report released for review and comment on June 26, 2020.

According to the FLWG, the following three principles guided the development of a proposed license for paralegals and other legal service providers[7]:

1. Access to justice: The licence should address areas of unmet legal needs in family law and have an impact on the challenges of access to justice.
2. Public protection: The activities that fall within the scope can be performed competently with appropriate education, training, licensing, and regulation.
3. Viability: The licence should form the basis of a viable practice that can attract a critical mass of candidates. It is important that the training requirements are attainable and that the prospective client pool is large enough to sustain a legal services practice.

Additionally according to the FLWG, they also took into consideration the business models of paralegals in developing there proposal for a license.

With the aforementioned background information in mind the inescapable conclusion is meant to be (if you read the Listening to Ontarians, Bonkalo, and the FLSP License Consultation Reports, in conjunction with one another) that since there is an access to justice problem, the only solution must be one that sees paralegals and other persons licensed to practise family law. It is the only solution because the principles of (1) access to justice, (2) protection of the public and (3) viability guided the recommendations contained in the FLSP License Consultation Report.

Despite the foregoing, the solution proposed by the FLSP License Consultation Report is not the only solution. In fact, it is not a solution at all. In order for Convocation to address the access to justice problem, it must reject the recommendations contained in the FLSP License Consultation Report. Adding more licenses who are can provide services to the public will not bring down the cost of legal services for litigants involved in the family law system and will not solve the access to justice issue identified in the Listening to Ontarian’s Report.

Adding more licensees who can provide services to the public will not bring down the cost of legal services. There is, absolutely, no empirical proof of that connection, and previous action by the LSO has already demonstrated that this approach does not work. Over the last approximately 20 years, the number of licensed lawyers has increased dramatically[8] without a corresponding decrease in the cost of legal service[9] (rather the cost of paralegal services has increased). Notably, there is no evidence provided in the FLSP License Consultation Report that licensing paralegals and other persons would reduce the cost of services. The FLWG admits in the FLSP License Consultation Report, “[t]here is no relevant data to support a comparison between what paralegals would charge for family law services and the amount lawyers currently charge”[10]. Rather, the sole basis for the assertion in the FLWG Report that licensing paralegals and other persons in family law will bring down the cost of legal services is “a preliminary environmental scan of paralegal billing practices”[11].

Basing recommendations that would permanently alter the landscape of the legal profession and on a simple “preliminary environmental scan” is troubling. What makes it especially troubling is that the authors of the Report admit it is the best evidence that they have because they lack hard and quantifiable data to back up there recommendation. An environmental scan is not a substitute for verifiable data and evidence.

The authors of the FLWG Report are asking Convocation to accept there recommendations and their Reports premise that a special license will reduce the cost of legal service on the basis of evidence to follow later, if at all. According to the authors of the Report evidence will be produced, at some unspecified point in time, to support there conclusion after the LSO has “conduct[ed] surveys and focus groups to collect additional information regarding hourly rates and billing models employed by paralegals and lawyers”[12]. If Convocation were to accept, the recommendations contained in the FLWG’s Report on this basis Convocation would not be protecting the public. Convocation would not be protecting the public because it would not be addressing the root causes of the access to justice problem and would not be guaranteeing a reduction in the costs of legal services to the public. Rather, Convocation would instead be instead applying a Band-Aid when surgery is called for instead.

Band-Aid solutions will not solve the access to justice. It will take transformational reforms to Ontario’s family law system to do that. To that end, we propose that Convocation instead of adopting the recommendations contained in the FLSP License Consultation Report adopt one of the following three approaches:

An article by John-Paul Boyd outlined the first approach Convocation should consider. Mr. Boyd published an article in the Canadian Bar Associations (CBA) National Magazine on February 25, 2019 that suggested removing family law from the traditional court system altogether:

“…consider removing family law matters from the courts altogether. These are disputes that could be moved into a specialized administrative system offering both adversarial and non-adversarial dispute resolution alongside: education on parenting after separation, child development and conflict management; social services providing parenting, housing and employment support; and financial and mental health counselling, parenting assessments and similar services. Such an administrative system should be interdisciplinary and explicitly aimed at promoting the well-being of children, reducing conflict and promoting parents’ ability to cooperate with each other. Its rules, policies and forms should be written in plain language and be tailored to the unique needs of families living apart; the rules of evidence and stare decisis should be simplified; and the extent of the adversarial and non-adversarial processes provided by the tribunal and the commission should be genuinely proportionate to the circumstances of each family, and the importance, complexity and value of the issues in each dispute;[13]

Removing family law matters from the courts altogether, as suggested by John-Paul Boyd, would open up opportunities for paralegals in the area of family law. Paralegals could assist families in resolving disputes through non-adversarial means for instance.

The second approach Convocation should consider adopting is the approach recommended by the Action Committee on Access to Justice in Civil and Family Matters. In the Action Committee’s Final Report released in April of 2013, they “recognized the unique nature of family law”[14]. In there Final Report, the Action Committee stated “[t]raditionally, separation and divorce were treated as matters for the courts, but it was clear by the 1980s, if not earlier, that traditional adversarial approaches used in civil litigation had not worked well for family law cases[15]. The Final Report called for a paradigm shift towards consensual dispute resolution (“CDR”) methods such as mediation and collaborative practice[16], which paralegals could be involved in. Expanded use of CDR is “probably the single most attainable, efficient and effective way to enhance access to family justice.”[17]

The third and final approach that Convocation should consider is the approach suggested by the CBA in 2013. That year the Canadian Bar Association’s Access to Justice Committee (CBA) released a Report called “Reaching Equal Justice: An Invitation to Envision and Act.” (CBA Report) In the Reaching Equal Justice Report, the CBA proposes:

1. Harnessing technology to transform the Court system by automating the current processes, allowing for online filing and records management and to allow for online dispute resolution amongst other services[18];
2. Transforming Courts into triage and referral centres that redirect litigants to the appropriate community based services and/or provides them with information about the proper processes in order resolve their legal issues without having to resort to full blown litigation involving a judge[19]
3. Court employing “a wide range employ a wide range of quasi-judicial officers (i.e. paralegals) to assist litigants to achieve just and timely outcomes[20];
4. Court becoming more customer oriented, similar to the Disney philosophy of customer service[21], so that they are open to feedback from litigants and develop transparent performance evaluation measures[22];

According to the CBA Report “[t]his re-centring of courts would involve transformation and overarching innovations”[23]. Further, the CBA Report envisions Courts becoming a community hub where litigants can go to gather information, get referrals to the services they require and act as the last resort only if all other options fail.

Transforming Courts into a community hub would require the implementation of a “team delivery of legal services” model[24]. The implementation of a team delivery of legal services model would recognize “the importance of increased diversity and specialization among legal service providers and enhanced capacity to provide comprehensive, cost-efficient services through teams of lawyers, other service providers (like paralegals) and providers of related services (like social workers). Further, a team delivery of legal services would see teams “deliver more comprehensive and holistic services tailored to people’s needs.”[25]

The reasoning behind the CBA Report’s recommendations is that “[e]ffective triage and referral to appropriate services and processes is key to transcending the unrepresented litigant phenomenon…”[26] Further, “[r]e-centred courts would develop the capacity for triage and referral that would complement and work in coordination with the jurisdiction-wide and community based networks that facilitate everyday justice. . . .”[27]

If the adoption of the aforementioned approaches is too much too fast then we urge Convocation to recommend to the Ministry of the Attorney General either one or both of the following options:

1. The creation of an Informal Domestic Relations Trial (“IDRT”) program similar to the Informal Domestic Relations Trial program in the State of Oregon[28]. The IDRT program is a voluntary process that requires both parties to opt in and is used to settle cases involving issues such as divorce, separation, custody, access, and child support. Further, the IDRT program is a more informal legal process. It is a more focused process because: (1) the parties speak for themselves; (2) most rules of evidence and procedure are either relaxed or waived altogether; (3) there is no cross-examination but a party can ask the judge to ask the other party certain things; and (4) the judge takes a more active role in keeping both the parties and the proceeding focused.
2. The expansion and improvement of existing programs already in place that specifically address the issue of access to justice in the area of family law. Those programs include both Court based and non-Court based programs.

The Family Court Services programs[29] that are already in place that have been created specifically to address the issue of access to justice in the area of family law are as follows:

1. Family Law Mediation Services;
2. Mandatory Information Program;
3. Family Law Information Centre’s; and
4. The Dispute Resolution Officer Program;

The non-Court based programs specifically created to address the issue of access to justice in family law include:

1. Ontario’s Family Law Limited Scope Services Project[30];
2. CLEO’s Steps to Justice Guide[31];
3. 393 Mediate[32]
4. Peel Family Mediation Services[33]
5. London Family Law Clinic[34]

In addition to the Court based and non-Court based programs that have been created organizations have been established to ensure that family law litigants who do not qualify for legal aid funding have access to low cost legal services. Two of those organizations are Self-Rep Navigators[35] and JusticeNet[36].

The reason that Convocation should prefer this approach, if Convocation were to conclude that the CBA Report’s recommendations require further study, is due to the practice of family law requiring more than just simply a knowledge of family law legislation and case law. Rather, the practice of family a service provider requires knowledge of the following other areas of law in addition to family law legislation and case law[37]:

1. Bankruptcy and insolvency;
2. Corporate law;
3. Criminal law;
4. Constitutional law;
5. Employment law;
6. Estates planning;
7. Pensions;
8. Personal injury;
9. Property law;
10. Real estate law;
11. Tax;
12. Trusts; and
13. Wills/Estates; and
14. Private international law and conflicts of Law.

In addition to the foregoing a working knowledge of accounting and valuation principles are also required.

In order to be knowledgeable in all of the foregoing areas of law and have a working knowledge of accounting and valuation principles requires a significant amount of training. That is why the FLSPL Report’s recommendation of the creation of a training program that would be “a minimum of six to eight months on a full-time basis (20 instructional hours per week) or one year on a part-time basis (10 instructional hours per week)… delivered primarily in-person” is not enough. In order to ensure that the person who is delivery family law legal services is competent to provide said services requires the following:

1. They take foundational courses such as those listed above in addition to a foundational course in family law;
2. spend time working under the supervision of a lawyer who practices in the area of family law; and
3. Ideally works for a Firm that provides family law services to the public.

In addition to the above noted minimum training, once a person licensed to deliver family law services to the public is competent, they should be taking further training in areas such as 1) collaborative law[38], 2) mediation[39], 3) arbitration[40], 4) legal coaching[41] and 5) working with self-represented litigants[42] to ensure their ongoing competence in the area of family law.

Without the above noted foundational and advanced training in the area of family law, a person licensed to provide family law services cannot be truly competent to deliver family law services to the public. That is why the FLSPL Report’s recommendation of a training program is not adequate in order to ensure the protection of the public in the area of family law.

If Convocation believes it advisable, in spite of the foregoing, to create a special license to allow non-lawyers to provide services to the public in the area of family law it is advisable that a lawyer be required to supervise, the provision of legal services in the area of family law by a non-lawyer service provider. The reasoning for this suggestion stems from the fact that, as mentioned above, without thorough foundational and advanced training in the area of family law, a person licensed to provide family law services cannot be truly competent to deliver family law services to the public without supervision.

— Robert Shawyer 

_______________________

[1] Listing to Ontarians: Report of the Ontario Civil Legal Needs Project (May 2010) and May 31, 2010 News Release “Hon. Roy McMurtry announces research results from comprehensive study of Ontario public’s legal needs”

[2]https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/family_legal_services_review/

[3] Family Legal Services Provider License Consultation Report at page 3

[4] Ibid at page 3

[5] Ibid at page 3

[6] Ibid at page 3

[7] Ibid at page 3 and 4

[8]Federation of Law Societies Statistical Achieves (https://flsc.ca/resources/statistics/) reports that between the periods 1998 through 2017 the number of lawyers in Ontario increased from 28,409 in 1998 to 58,084 as of 2017, which is the last year that data on the number of lawyers in each Province in Canada is available.

[9] According to the First Report of the Civil Justice Review Team submitted on March 7, 1995 to the Honourable Roy McMurtry, Chief Justice of the Ontario Court, and the Honourable Marion Boyd, Attorney General of Ontario, the cost of a typical 3-day civil trial for an average litigant was $38,200. (See Table 3: Cost of the typical civil case to litigant in Chapter 11, part 11.1 Cost and Value of Justice https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjr/firstreport/cost.php). Whereas in 2016, some 21 years later, according to the Honourable Justice Bonkalo, author of the 2016 Family Legal Services Review, the cost of a typical 2-day civil trial for an average litigant was $25,036 and $45,750 for a 5-day civil trial. (See page 13 of the Justice Bonkalo’s 2016 Family Legal Services Review). Further, according to the Action Committee on Access to Justice in Civil and Family Law Matters, the average cost of a high cost dispute is $54,390 and the cost of a low conflict dispute is $12,395 (https://cfcj-fcjc.org/infographics/Cost-Of-Family-Law-Disputes/).

[10] Supra note 4 at page 4

[11]Ibid at page 4

[12]Ibid at page 4

[13] https://www.nationalmagazine.ca/en-ca/articles/law/opinion/2019/family-justice-in-canada-is-at-a-breaki

[14] https://flsc.ca/wp-content/uploads/2014/10/services5.pdf, at p. 14.

[15] Ibid at p. 14

[16] Ibid, at pp. 6 & 20-23.

[17] Ibid, at p. 23.

[18]Report of the CBA Access to Justice Committee “Reaching Equal Justice: An Invitation to Envision and Act” (2013) at page 76.

[19]Ibid at page 86. Also see Richard Zorza, “The Access to Justice “Sorting Hat”: Towards a System of Triage and Intake that Maximizes Access and Outcomes” (2012) 89:4 Denver University Law Review 859 at 861 (http://www.zorza.net/SortingHat.pdf)

[20] Supra Note 14 at page 93.

[21] https://www.disneyinstitute.com/about/expertise/customer-service/

[22] Supra Note 14 at page 93.

[23] Supra Note 14 at page 84.

[24]Supra Note 14 at page 95

[25]Supra Note 14 at page 95

[26]Supra Note 14 at page 84.

[27]Supra Note 14 at page 84

[28]https://www.courts.oregon.gov/programs/family/forms/Pages/Informal-Domestic-Relations-Trial.aspx

[29] https://www.ontariocourts.ca/scj/family/court-services/

[30] https://www.familylawlss.ca/

[31] https://stepstojustice.ca/

[32] https://www.mediate393.ca/

[33] https://peelfamilymediation.org/about-us/

[34] https://www.lfcc.on.ca/

[35] http://www.limitedscoperetainers.ca/join-us/

[36] https://www.justicenet.ca/

[37]See the December 21, 2018 Submission of the Canadian Bar Association (British Columbia Branch) to the Law Society of BC regarding Family Law Legal Services Providers Consultation Paper at page 21 (https://www.lawsociety.bc.ca/Website/media/Shared/docs/initiatives/Alternate/Consultation-feedback_2018-12-28.pdf).

[38]https://oacp.co/

[39]https://adr-ontario.ca/members-practitioners/approved-courses/mediation-courses/

[40]https://adr-ontario.ca/members-practitioners/approved-courses/arbitration-courses/

[41]https://www.familylawlss.ca/legal-coaching/

[42]https://www.familylawlss.ca/