Will this increase access to justice?

For some years, the Law Society of Ontario has been grappling with how to increase access to justice for Ontarians. This has taken many forms, including, as I have written about here before, licensing paralegals to provide some family law services in an attempt to increase access to justice for low-income people with family law issues.

The concept of increasing access to justice is, of course, a laudable one, but whether or not licensing paralegals (or Family Legal Services Providers, as this new breed of legal advisors is being called) will achieve that is doubtful. In fact, licensing FLSPs could exacerbate the existing situation.

True access to justice means that everyone, no matter their status, has access to quality legal representation from highly trained practitioners when they need it.  This requires innovation and investment. 

Many of us are concerned that the current proposal could create a three-tiered family law system: those with lawyers, those with paralegals and those representing themselves. Most disadvantaged in this system will be those who have historically been marginalized and disadvantaged: women, new immigrants and those who are Black, Indigenous and People of Colour. 

Not surprisingly, my interest in this possible change in licensing is focused on the impact on survivors of family violence. To increase access to justice for women leaving abusive relationships requires a nuanced and multi-faceted approach.

What’s what?

The current proposal by the Law Society, which is presently available as a Consultation Paper for anyone who wishes to submit comments (by November 30th), looks at the possible scope of services that would be provided by FLSPs, the competencies they would need to have and what education would be required for a paralegal to be licensed as a FLSP, none of which adequately addresses issues related to family violence.

In terms of scope of practice, FLSPs would be authorized to provide, for example, services relating to post-separation parenting arrangements. These issues are often the most complex, nuanced and emotional issues faced by survivors of family violence. How the family court responds to them is of great importance in terms of safety for women and their children who are fleeing an abusive relationship. 

The present proposal does not take into account the way in which many abusers play one family law issue off against another: promising not to fight for parenting time or decision-making responsibility if the woman agrees to accept a reduced level of spousal support or not to make a claim for a division of family property. Further, family law issues often overlap with criminal and child protection proceedings, which complicates the legal issues in each area.

Excluding cases involving family violence from the scope of practice for FLSPs might, at first glance, appear to be a solution to the challenges identified above. However, this is not a good idea for at least one reason: many women do not identify the presence of family violence until well into their family law case, which would make it difficult for the FLSP to know whether or not this issue might be disclosed or arise in the future.

While the proposal sets out an impressive 209 competencies that FLSPs will be required to have, almost none are related to family violence. That should be a serious concern.

The proposed education requirements are similarly lacking: out of a total of 550 instructional hours, a mere 20 are allocated to family violence. There is no provision for an articling-like component, which would give a future FLSP the opportunity to see family law cases, including those involving family violence, up close and in real time.

There is also no indication that the family violence sections of the curriculum need to be written and taught by family violence experts, which is critical if the education component is to be meaningful.

Education about family violence is essential – not just for FLSPs but for all legal advisors, any of whom can find themselves representing either a survivor or perpetrator of abuse within their family. Unfortunately, such education and training for lawyers, mediators, court clerks and other players in the family law system is inadequate at the present time.

What would be better?

Before much more action is taken in the direction of licensing FLSPs, we need some solid evidence that these services will actually be financially accessible to those who cannot afford lawyers. That evidence is completely lacking at this time. Will someone be able to get a legal aid certificate for paralegal services? If so, does that mean Legal Aid Ontario will not provide certificates to lawyers for those same services?

In the meantime, there are non-lawyer experts in family court right now: Family Court Support Workers (FCSWs), whose job is to assist survivors of family violence through their family court process. These workers, if the program were adequately funded, could provide many of the services presently being proposed for FLSPs, and could do so with real expertise in family violence and with years of practical experience in family courtrooms and with clients.

The truth is that the family court system in Ontario needs a massive overhaul. Improving laws, as Bill 207 proposes to do, is one step in that process.

In addition, all institutions and individuals with a hand in what happens in Ontario’s family courts need to engage with one another in robust and expansive consultations and collaborations to make sure that we take steps forward and not backward.

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