FOLA’s Family Law Committee Response to LSO Family Legal Services Review

Federation of Ontario Law Associations
Family Law Committee
Response to “Family Legal Services Review”
Report by Justice Annemarie E. Bonkalo
Submitted to: Access to Justice Committee, Law Society of
Upper Canada
Submitted May 23, 2017
commentsflsr@lsuc.on.ca
Jaye Hooper, Chair
Mike Winward, 1st Vice
Chair, Treasurer
William Woodward, 2nd
Vice Chair
Eldon Horner, Past Chair
Nathan Baker, Central East
Region
Terry Brandon, Southwest
Region
Sonya Jain, Family Law
Chair
John Krawchenko, Central
South Region
Rene Larson, Northwest
Region
Merredith MacLennan,
Real Estate Chair
Kristin Muszynski, East
Region
Jane Robertson, Central
West Region & Legal Aid
Committee
Alfred Schorr, Paralegal
Committee Chair
Margaret Waddell, Toronto
Brigid Wilkinson, Northeast
Region
William Woodward,
Southwest Region
Michael Ras, Executive
Director
Kelly Lovell, Executive
Assistant
2017-18
EXECUTIVE
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EXECUTIVE SUMMARY
Please accept this submission on behalf of the Family Law Committee of the Federation of Ontario
Law Associations, (“FOLA”).
FOLA is made up of the members of the 46 local law associations spread across Ontario. In total,
we represent approximately 12,000 lawyers who are, by-in-large, practising in private practice in
firms of all sizes across Ontario. Many of our members practice in small communities or service
neighbourhoods in larger centres where they are pillars of their community. Our members are on
the front-lines of the justice system and see its triumphs and shortcomings every day.
FOLA is an advocate, on behalf of practising lawyers, for a better justice system that recognizes the
crucial role competent and professional lawyers play in oursystem of justice. Many of our members
are professionals who specialize in family law either exclusively or as part of a broader general
practice, but regardless of area of practice, this topic and the potential to expand the scope of
practice for non-lawyers is of great interest – and concern – to nearly all our members.
Our Position in Brief
While we applaud the efforts by the Attorney General and the Law Society to examine the
challenges of “access to justice” in the family law system, we believe that providing access to
competent counsel and justice are very complicated issues. A lack of access is rooted in many
causes with many different possible solutions.
As we will lay out in the course of this submission, FOLA and its members do not believe that the
conclusions of Justice Bonkalo in her report entitled, “Family Legal Services Review” (hereinafter
referred to as “the Report”) with respect to licensing paralegals and other non-lawyer professionals
to work in this space, without lawyer supervision, can be supported by evidence. Many of her
recommendations could, in fact, produce irreparable harm to the family law justice system.
The majority of the Report reviewed some of the existing family legal services and then made 21
recommendations. Some of the recommendations are supported by FOLA, (e.g. regarding lawyers
providing unbundled services and legal coaching and the Law Society and LawPRO continuing to
educate and support same), but it is the Report’s recommendations regarding expanding the scope
of paralegal practice into family law, without lawyer supervision, that are the most fraught with
controversy and most opposed by our membership.
FOLA cannot and will not support a “specialized license for paralegals to provide specified legal
services in family law.” FOLA cannot and will not support the list of areas of practice or legal advice
and representation that the Report recommends paralegals be able to provide. In making these
recommendations, the Report has disregarded and/or ignored most the submissions made during
the consultation process from the family law Judiciary and from the practicing family law Bar. In
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other words, the concerns expressed by those who currently work directly with the families and
deal with the challenges facing the family court every day were ignored.
Respectfully, we submit that the Report is seriously flawed and many of the recommendations are
dangerous and costly to the public and the justice system. We concur with the submission provided
by the Superior Court of Justice, where they stated:
“Given the complexity of and the importance of this area of the law, it is not necessarily
realistic to expect paralegals to be able to provide competent legal advice in a family case,
even with the development of standard educational and training requirements…We already
see the challenges for the Court when only one party has representation and judges have to
work hard to ensure that self-represented litigant receives procedural fairness. If paralegals
can represent parties in a family case, it would cause greater confusion for the judge in
terms of what potential assistance to provide to ensure fairness between the parties.”
We submitthat family law is complex, emotionally charged and not to be taken on by anyone except
the best trained and regulated professionals. Most family lawyers go into this area of practice
because they want to help people
solve their legal problems and move
forward with their lives. They engage
in specialized legal and alternative
dispute resolution training and
participate in ongoing professional
development. They are for the most
part, emotionally and intellectually
predisposed to finding solutions in
highly emotional conflicts. We simply
do not believe that expanding the
scope of paralegals to practice family
law will improve “access to justice.”
Summary
In this submission, we will provide our opinions on specific recommendations that we agree on and
those that we believe are erroneous. We will provide a perspective on where we believe Justice
Bonkalo was mislead or misinformed in her conclusions and on what we believe could be
unintended consequences of her recommendations.
Our submission today will also repeat and rely on many of the same arguments made in our written
submission to Justice Bonkalo in May of 2016. We challenge some of the underlying assumptions
that are defining the problem and driving the development of a policy that from the beginning of
this process was inevitably going to conclude with a call for an expanded scope of practice for nonlawyers. Second, we make the case that the training, disposition and skills of lawyers make them
the best positioned professionals to remain at the centre of family law disputes and litigation.
“… THE QUALITY OF JUSTICE IN THE ONTARIO
COURT OF JUSTICE WILL SUFFER. WE HAVE A
COURT SYSTEM THAT IS PREMISED ON LAWYERS.
WE NEED LAWYERS. THIS IS LAW. NOT ONLY IS
THIS LAW, IT IS PROFOUNDLY IMPORTANT LAW,
AND WE NEED LAWYERS TO REPRESENT THESE
PEOPLE.” – JUSTICE MARION COHEN
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A large portion of our report, however, will be to reiterate some of the better ideas for reform that
we first submitted in May of 2016 to Justice Bonkalo and that we believe should be considered,
implemented, allowed to germinate and measured before taking any further radical steps to
fundamentally alter the family law justice system. Many of these recommendations fall into the
purview of the Attorney General, but there are some that could be tackled by the Law Society in
partnership with the practising bar across Ontario. FOLA is prepared to work with the Law Society
and Ministry to advance any of these initiatives.
FOLA’s Paralegal Committee will offer comment in a separate submission on what it believes the
Law Society should do if the recommendation by Justice Bonkalo is accepted to allow for the
expanded scope of practice for paralegals. Their committee has been looking at these issues for
many years and they are in a much better position to comment on that aspect of what the Access
to Justice Committee of the Law Society is presently considering.
We look forward to participating in any further discussions or reviews of this very important subject.
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Specific Comments on the Report’s Recommendations
Recommendations 1 and 2:
Recommendation 1:
Lawyers should continue to offer unbundled services and should take steps to ensure the public is
made aware of their availability. Lawyers should consider innovative opportunities to offer
unbundled legal services, including affiliations with other lawyers and online platforms.
Recommendation 2:
The Law Society of Upper Canada and LawPRO should continue to support the expanded use of
unbundled services and should offer continuing legal education opportunities and tools to address
the liability concerns that lawyers have raised as an impediment to offering these services.
FOLA Position:
Accepted. FOLA agrees with both recommendations 1 & 2 and only recommends that the Law
Society also undertake to do the following:
(a) Considering the 2017 Ontario Court of Appeal case of Meehan vs. Good, amend the Rules
of Professional Conduct to further clarify the responsibilities of a lawyer acting under a
limited scope retainer to help minimize the risks to public and the risks of liability for the
lawyer.
(b) In addition to educating the lawyers and the public, the Law Society should also educate
the Judiciary so that they fully understand unbundled legal services and limited scope
retainers. The Judiciary should clearly understand that the Law Society and LawPRO have
both repeatedly and strongly advised lawyers who offer these services not to work outside
of a clearly defined written limited scope retainer.
Recommendation 3:
The legal profession should support the development of legal coaching and offer continuing legal
education opportunities to ensure lawyers are equipped to offer these services. Lawyers should be
encouraged to take these training programs, and to offer and advertise coaching services. The Law
Society of Upper Canada and LawPRO should consider providing incentives for lawyers to make legal
coaching an integral part of their practice.
FOLA Position
FOLA is unable to agree or disagree with the recommendation. We need clarification on what “legal
coaching” means. For example, most lawyers view “legal coaching” as a type of mentoring between
lawyers, (which FOLA would fully support). However, the Report seems to indicate that “legal
coaching” is a service lawyers could provide their clients and that is where the meaning becomes
unclear. There are limited scope retainers where a client does not want the lawyer to attend court,
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however, they want the lawyer to give them legal advice and direction on representing themselves
at court, and possibly remain available to them on the day of court so the client can call and ask
questions. If this is the type of legal coaching the Report was talking about, then FOLA can also
support this recommendation, but with the amendments to the Rules of Professional conduct and
education as set out above.
Recommendations 4, 5 and 6:
Recommendation 4:
The Law Society of Upper Canada should create a specialized licence for paralegals to provide
specified legal services in family law.
Recommendation 5:
Paralegals licensed in family law should be permitted to provide legal services in the following areas:
• custody;
• access;
• simple child support cases;
• restraining orders;
• enforcement; and
• simple and joint divorces without property.
They should not be permitted to provide services in cases involving:
• the Convention on the Civil Aspects of International Child Abduction[124] (i.e. the Hague
Convention);
• child protection (which is outside the scope of this review);
• property;
• spousal support;
• complex child support in which discretionary determinations are necessary to arrive at an
income amount (e.g. self-employment, undue hardship); and
• relocation.
Recommendation 6:
Within the areas of practice set out in Recommendation 5, above, paralegals licensed in family law
should be permitted to do the following:
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1. Conduct client interviews to understand the client’s objectives and to obtain facts relevant
to achieving that objective;
2. Perform the following forms-related tasks:
i.Complete court-approved forms on the client’s behalf;
ii.Advise the client on which form to use;
iii.Advise the client on how to complete the form;
iv.Sign, file and complete service of the form on the client’s behalf;
v.Obtain, explain and file any necessary supporting documents on the client’s behalf;
1. Select, draft, complete or revise, or assist in the selection, drafting, completion or
revision of, a document for use in a proceeding;
2. Determine what documents to serve or file in relation to the proceeding, determine
on whom to serve or file a document, or determine when, where or how to serve or
file a document;
3. Advise the client about the anticipated course of proceedings by which the court
will resolve the matter;
4. Communicate with another party or the party’s representative;
5. Represent a client in mediated negotiations;
6. Prepare a written settlement agreement in conformity with the mediated
agreement;
7. Represent a client in court, other than at trials; and
8. Advise a client about how a court order affects the client’s rights and obligations.
FOLA Position
Not accepted. FOLA cannot and will not support a “specialized license for paralegals to provide
specified legal services in family law.” FOLA cannot and will not support the list of subject areas of
practice for legal services or the types of legal services, advice or representation that the Report
recommends paralegals be able to provide.
All three of these recommendations are seriously flawed and, in our view, are dangerous to the
public. The Report does not clarify or differentiate between providing “legal services,” “legal
advice” or “legal representation.” The Report uses these terms interchangeably, but precision in
their definition is essential to the appropriate development of public policy.
FOLA cannot support paralegals providing any advice or representation unless it is with the
supervision of a lawyer for the reasons laid out in the following:
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Our first of many critiques of these particular recommendations revolve around the fact the Report
dramatically contradicts itself when it says, “there is no doubt that family law is complex and that
it has the potential to forever impact vulnerable people in the most important areas of their lives”
and then goes on to recommend 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.” Respectfully, FOLA submits that family law is complex, period. Determining the best
interests of a child has never been “less complex.” Family law situations that involve domestic
violence issues and the potential need for a restraining order has never been “less complex.” Even
many divorce applications that seem “less complex” in the beginning turn out to be very
complicated and can have deep and long-lasting effects on a litigant’s rights, (e.g. property and
pensions and health benefits). As Justice Cohen said in her article in the Toronto Star on March 14,
2017, paralegals in family courts, “is not the solution.” She went on to say that custody and access
issues are “complicated endeavours” and pointed out that the Report does not provide any
direction for what will happen to litigants
whose access or child support case
transforms from the so called “simple” to
“complex.” She aptly pointed out that the
Report’s recommendations create a “twotier” system because, “Paralegals can’t
assist on the question of who gets the
Rolex, but they can assist on who gets the
kids?”
A second critique, related to the first, is
that the Report misrepresents and
minimizes the importance of the so called
“court approved forms” and family court documents. These documents are not just “forms.” These
documents are “pleadings” and “affidavits”. Completing family court forms is not just a matter of
ticking the right boxes and filling in the blanks. An appreciation and knowledge of what is behind
these documents is needed and completing the documents incorrectly without any thought to the
long-term consequences could jeopardize a client’s claims and credibility in the long run. Many of
these claims are outside the purview of “family law” and fall into other areas of law including
estates, real estate, tax law, corporate law, etc.
A third critique revolves around the assumptions of affordability. The Report does not differentiate
between the needs of the “un-represented” litigant and the “self-represented” litigant. The Report
makes the unfounded and unsubstantiated assumption that an “unrepresented” litigant who
cannot afford to hire a lawyer will instead hire a paralegal and that this will improve “access to
justice.” The Report offers no evidence to support this assumption and further provides no
evidence to suggest that Paralegals are, in fact, more affordable to this segment of family law
litigants or that they will have a positive impact on the issue of “un-reps” in family court.
As we pointed out in our initial submission to Justice Bonkalo, we believe a further distinction needs
to be made between unrepresented litigants who cannot afford the legal process and those who
FOLA SUBMITS THAT FAMILY LAW IS COMPLEX,
PERIOD. DETERMINING THE BEST INTERESTS OF A
CHILD HAS NEVER BEEN “LESS COMPLEX.”
FAMILY LAW SITUATIONS THAT INVOLVE
DOMESTIC VIOLENCE ISSUES AND THE POTENTIAL
NEED FOR A RESTRAINING ORDER HAS NEVER
BEEN “LESS COMPLEX.”
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are self-represented because they chose to be. We do not believe accurate statistics are kept on
these cases, but enough family law practitioners have noted that they believe a portion of the selfrepresented population is able to retain counsel but has, at some point in their case, received advice
they did not support or like and have chosen to carry on the fight without counsel. When these
cases do end up in court, they often drag on unnecessarily and are the high-conflict cases that
receive high profile and clog up the courts.
Competent counsel, retained early, often helps litigants avoid these high-conflict situations and
steers their clients to lower-cost mediation or settlement that avoids high-cost court appearances.
A fourth critique revolves around the dangerous recommendation that paralegals should be
allowed to provide legal representation to “clients in court, other than in trials, as long as the matter
on which they are providing representation fall within their prescribed scope.” This statement
creates potentially serious problems for clients who have complex matters that are both inside and
outside the “prescribed scope” of what a paralegal might be able to do. For example, an application
is commenced for custody and access and child support, however, there is also a legitimate claim
for spousal support. Is the specialized paralegal only to speak to parts of the application?
In the experience of practicing lawyers that we consulted across Ontario, it is extremely rare that
any family law case is narrowly focused or that certain areas of family law (and law beyond family
law) do not overlap.
A fifth critique revolves around the easily foreseeable situation of one party who retains a lawyer
and one party who retains a paralegal. In this situation, if it is a high conflict case, either litigant
has the ability to refuse to settle and drag a matter all the way to trial. The paralegal, in this case,
cannot continue to represent the litigant at trial possibly leaving one party with no representation,
or forcing the situation where a new lawyer will need to pick up a file midstream. In this scenario,
even if the client can retain a counsel, it will be very difficult for that lawyer to pick up a matter on
the eve of trial when they have not
been involved in any of the documents
preparation, negotiations or prior
court appearances or the development
of their strategy.
Finally, the Report offers that
expanding the scope of paralegal
practice was providing “something” to
those who cannot afford a lawyer, and
“something is better than nothing.”
However, as Justice Cohen said,
“something is not better than nothing.” The Report basically disregards all the innovations and
options that have been put into place to offer the un-represented and self-represented litigant’s
family legal services and calls them “nothing.” Laying the blame on lawyers for the challenges faced
by the family justice system and the numbers of unrepresented and self-represented litigants is
simply wrong and upsetting to those family law lawyers who work so hard every day to provide
LAYING THE BLAME ON LAWYERS FOR THE
CHALLENGES FACED BY THE FAMILY JUSTICE
SYSTEM AND THE NUMBERS OF UNREPRESENTED
AND SELF-REPRESENTED LITIGANTS IS SIMPLY
WRONG AND UPSETTING TO THOSE FAMILY LAW
LAWYERS WHO WORK SO HARD EVERY DAY TO
PROVIDE ACCESS TO JUSTICE …
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access to justice. Despite the sometimes-fragile economic model for many family lawyers, they are
still doing so many things to help meet the challenges. Lawyers are volunteering and spending days
in court free of charge to participate in MIP presentations and DRO services. They take on the low
paid work with legal aid certificates, per-diem duty counsel and work in clinics. They are creating
innovative affiliations and programs that offer unbundled legal services and “day of court”
representation. Many lawyers even offer pro-bono legal services. They are taking training and
offering services in mediation, cooperative and collaborative family law. They are continually
educating themselves on family law issues and how to deal with high conflict. Is this, as the Report
puts it, “nothing”?
As we will outline in more detail later in this response, there are better and more impactful options
that will improve access to justice and make family law more affordable.
Recommendation 7, 8 and 9:
Recommendation 7:
Paralegals wishing to specialize in family law should first be required to complete the current
requirements for a paralegal licence.
Recommendation 8:
At minimum, the following topics should be included in any education and training of paralegals in
family law: gender-based violence, family dynamics, client counselling, forms completion, ethics and
professionalism, substantive and procedural family law and indicators that a client requires referral
to a lawyer.
Recommendation 9:
A practical, experiential component in family law should be built into the licensing process for
paralegals specializing in that area.
FOLA Position
Given FOLA’s position as laid out above, our Paralegal Committee will provide some comments on
the Reports recommendations regarding the training and experience requirements for a paralegal
to become “specialized” in family law. However, we do wish to point out that allowing a paralegal
to call themselves “specialized” in family law could create very serious regulation problems and
further confuse the public.
Even lawyers who have practiced family law for many years are not permitted by the Law Society
to call themselves “specialized” without going through a rigorous (some would say, impossible)
application process. If paralegals can or are required to call themselves, “specialized” it may give
the impression to the public that they are a better option rather than retaining a lawyer.
There is already a great deal of confusion for the public because of how paralegals have been
allowed to market themselves. (A point that FOLA has made in its submissions to the Advertising
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and Referral Fee Working Group.) Many new Canadians or citizens that speak English (or French)
as a second language – or not at all – already find it difficult to differentiate between a paralegal
and a lawyer. This sector of the public is already very vulnerable to abuses in this area of law
because they may be alone and without family supports. In addition, there will also inevitably be
new immigrants that have spousal support and/or property rights and yet they do not pursue these
claims because they went to a paralegal and such matters would be outside their scope of practice.
When lawyers do not advise their clients of their rights, they can be held liable. What will happen
to the paralegal in this type of situation?
Recommendation 10:
Licensed paralegals with a specialization in family law should be subject to regulation and oversight
by the Law Society of Upper Canada, and be required to be insured for their services.
FOLA Position
This matter will be taken up by FOLA’s Paralegal Committee report
Recommendation 11 and 12:
Recommendation 11:
The Law Society of Upper Canada should take steps to facilitate collaboration between lawyers and
paralegals with family law licences to form formal and informal affiliations, referral networks and
interdisciplinary teams.
Recommendation 12:
Legal Aid Ontario should apply its interdisciplinary model to family law, using paralegals licensed in
family law wherever possible.
FOLA Position
If the Law Society expands the scope of paralegals to include family law and requires that paralegals
be supervised by lawyers, then facilitating collaboration between lawyers and paralegals is
appropriate. However, in our view paralegals should not be permitted to offer family law legal
advice or representation without the supervision of a lawyer or in a separate practice acting on
their own, for the reasons stated above. Additionally, LAO should not be permitted to offer legal
aid certificates that encourage or only allow a client to use a paralegal, also for the reasons already
stated.
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Recommendation 13:
The Ministry of the Attorney General should consider whether opportunities exist to utilize
paralegals licensed in family law in the delivery of family justice services, including at the Family Law
Information Centre and at the family court counter.
FOLA Position
Accepted, on the condition that paralegals are not providing any legal advice or legal representation
without lawyer supervision. Paralegals must be limited to providing only legal information and
direction to resources at the family court counter and/or Family Law Information Centre’s. An
exception might be made for aid to be provided in a triage program, however, someone trained
and experienced in social work or psychology would likely be better equipped for that type of
position.

Recommendation 14:
The Family Rules Committee should consider how the family court forms could be amended to
require service providers who are compensated for preparing, or assisting in the preparation of,
forms, to indicate that they have provided such assistance.
FOLA Position
Accepted. No further comment.
Recommendation 15 and 16:
Recommendation 15:
The Law Society of Upper Canada should review the impact paralegals specialized in family law have
had on access to justice five years after the first family paralegal licences have been issued. This
review should include an analysis of whether paralegals provide an affordable alternative to
traditional models, whether the introduction of paralegals in family law has had any impact on selfrepresentation and whether adjustments should be made to their scope of practice.
Recommendation 16:
In order to facilitate a five-year review, there should be a robust evaluation system in place as soon
as paralegals are permitted to begin specializing in family law. The evaluation should measure client
and paralegal satisfaction, as well as obtain views from the wider family justice community on the
impact of paralegal practice in family law.
FOLA Position
In our initial submission to Justice Bonkalo, FOLA made the point that there was no empirical
evidence from any jurisdiction in North America that identified an economic case for either clients
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or the justice system when paralegals are allowed to move into family law. Granted, there are few
jurisdictions where paralegals (or equivalent para-professionals) are allowed to practice in the area
of family law, but this too supports our broader point. There is simply not enough strong evidence
to justify that expanding scope of practice will result in a positive movement of the statistics
surrounding self-represented or un-represented litigants. The recommendations are made on little
more than a prima facia assumption that paralegals will charge less and that their representation
will be less costly both to the client and the system.
We challenge this assumption on three levels. First, our members report that many paralegals – in
particular senior, experienced paralegals – in many parts of Ontario have, over time, raised their
rates to be roughly equivalent to that of lawyers in the same community. The same general trend
can be expected for specialized family law paralegals over time. In any case, the evidence only
exists in anecdote and no empirical study of paralegal and lawyer rates exist. Even the rates cited
in Justice Bonkalo’s report are samples.
Second, we contend that an examination of cost should be looking at system-wide cost and not just
the price to the client. As noted in our first submission, at the simplest of levels, if a lawyer charges
$300 per hour to prepare a document or affidavit and is able to do the work in one hour, the cost
to the client is $300. A less expensive, but also less experienced professional such as a specialized
family law paralegal may charge a lower hourly rate of, for example, $150 per hour, but require 2
hours to do the same document for a total cost of $300.
A similar economic analysis needs to also be done for the justice system as a whole. Many judges
and lawyers can cite examples of paralegals in small claims court, for example, who bring reams of
superfluous evidence, exhibits or documents to the trial and delay proceedings with unnecessary
and complicated motions. While we acknowledge there are some lawyers who might use these
tactics, the incidences of lawyers who clog the system are much less frequent. Some of these
concerns would be addressed with better training for paralegals, but the point remains that no
empirical study has ever been done of the true cost (or true cost savings) of paralegals in the justice
system. We simply do not know and without this evidence, solid public policy cannot be made.
Third, we fear that introducing ostensibly less expensive para-professionals into the market might,
in fact, drive some lawyers out of the market. Many of our members across Ontario are general
practitioners in small communities. They might devote one quarter of their practice to family law
and the rest to a variety of practice areas (wills and estates, real estate, criminal, etc.). What
happens to the portion of the practice devoted to family when a paraprofessional who charges
lower hourly rates enters the market and starts to compete? When faced with price competition,
the lawyer has the choice to lower their rates or leave the market altogether. We fear many will
simply leave the market and leave a void in communities across Ontario, particularly small towns.
How will fewer lawyers providing family law services be an improvement to the access to justice
problem?
As such, we recommend that the Law Society should undertake a comprehensive economic impact
study looking at rates, cost to clients, system cost and the impact on access to justice before
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undertaking such a radical public policy decision. If nothing else, this study will provide a necessary
base-line of information to work from for any future steps that might be taken.
That said, if the Law Society does accept the recommendation to expand the scope of practice for
paralegals without this work being done, FOLA agrees that there needs to be an ongoing robust
evaluation of the impact of paralegals. Lawyers and judges should also be asked to provide
feedback on their experiences working with or supervising paralegals and the review should be
focused on system cost, cost to clients and the impact on the rates of self-represented litigants in
the system. The review should commence much sooner than 5 years as recommended in the
Report and, we believe, should be done right away so a base-line of information is collected and
the impact of other variables (such as the role out of Unified Family Courts) can be factored.
Recommendation 17:
The Ministry of the Attorney General and LAO should ensure continued funding to enable student
programs like Pro Bono Students Canada’s Family Law Project and the student legal aid services
societies to continue to operate and possibly even expand.
FOLA Position
Accepted. No further comment except that the Pro Bono Students should continue to be
supervised by lawyers.
Recommendation 18:
The Family Rules Committee should consider amendments to Rule 4 to ensure its consistent
application across courts, particularly with respect to court appearances by students and to clarify
when lawyer supervision is required. Where supervision is required, judicial permission should not
be necessary.
FOLA Position
Accepted. FOLA supports increased court appearances by law students in family court only where
they are supervised by a lawyer.
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Recommendation 19:
The Law Society of Upper Canada should take the opportunity during its review of its licensing
process for lawyers to consider whether there is a way to connect the experiential learning of law
students with unmet legal needs in family law.
FOLA Position
Accepted. FOLA is supportive of any opportunities for the practicing family lawyer and law students
to connect and provide experiential learning for law students while at the same time, help meet
the legal needs in family law.
Recommendation 20:
The Ministry of the Attorney General should develop a training program for court staff that
emphasizes the difference between legal information and legal advice and encourages staff to
provide as much assistance as possible within the limits of their role.
FOLA Position
Accepted. This recommendation aligns with one of the key recommendations made in our first
submission to Justice Bonkalo.
Recommendation 21:
The Law Society of Upper Canada should ensure that rules relating to the unauthorized practice of
law clearly distinguish between legal advice and the legal information provided by court staff to
unrepresented litigants.
FOLA Position
Accepted on the condition that paralegals be included as not being authorized to practice family
law. FOLA agrees that the Law Society should ensure that there are clear distinctions made
between legal advice and legal information. Non-lawyers, (including court staff, law students, law
clerks and paralegals) should not be providing legal advice or legal representation in family law
without the supervision of a lawyer.
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CHALLENGING THE UNDERLYING ASSUMPTIONS
Underlying this consultation are four assumptions which, to varying degrees, we believe need to be
challenged and questioned. We acknowledge that each of these assumptions have some degree of
truth to them, but we believe further careful empirical study is needed to better quantify the
challenges and to fully appreciate the scope of the problem.
The four underlying assumptions are:
• that the growth of self-represented litigants in the court system is a result of high legal costs
associated with high lawyer fees;
• that the self-represented litigant problem is suddenly growing to crisis levels;
• that paralegals would be less expensive; and,
• that there are many “simple” cases in the family courts that could be better dealt with by
non-lawyers.
We acknowledge that on the surface, there may be some logic in these assumptions, but in our
research, that has scanned across North America we can find no empirical evidence that this is the
case. Even if there is some grain of truth in these assumptions, we object to the degree and scale
of how these assumptions are being represented and used to justify policy decisions that will have
a profound impact on the family law system, on family law practitioners and on the litigants,
themselves.
Assumption #1: “Self-represented litigants are self-represented because they cannot afford
a lawyer”
Our challenge to this assumption is three-fold. First, there are many lawyers in Ontario who offer
flexibility in their payment arrangements (such as offering payment terms that might extend over
years). Also, early results from flexible arrangement pilot programs such as limited scope retainers
and other mechanisms are promising and deserve to be fully explored. (We will touch on this more
later in our submission.)
Secondly, in her report, Justice Bonkalo does not differentiate between the “self-represented” and
the “un-represented” litigants. “Self-represented” litigants are people who for various reasons
CHOOSE to represent themselves in court. The “un-represented” litigants are people who want
proper legal representation, however, they do not qualify for legal aid and do not have the financial
resources to pay for counsel. This distinction is very important because these two groups have very
different needs. The Report assumes that an “un-represented” litigant who cannot afford to hire a
lawyer will instead hire a Paralegal, yet it offers no evidence to support this assumption and
provides no proof that Paralegals are more affordable to this segment of family law litigants or that
they will have a positive impact on the “un-rep” problem.
Third, the cost of family law is the result of many factors including the complexity of relationships,
blended families, the higher net-worth of some of the litigants (and therefore higher costs
associated with unpacking and dividing assets) and the Family Law Rules that require more
appearances than are probably necessary. Family law is also unique in that it allows re-litigation in
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cases of material changes of circumstances. Conceivably, a young couple with young children may
be facing off in court for nearly 20 + years.
One suggestion for further research into this subject would be to compare the number of self-reps
in criminal law to the self-reps in family law. If the financial qualification for a legal aid certificate
in criminal law is comparable to family law and if the number of self-reps in criminal law is far less
than in family law and if many of the participants in the criminal law area are people of relatively
modest means, that would mean that most accused persons who do not qualify for legal aid can
“afford” a lawyer. However, as a group, on the surface, they may present as no better off financially
than the people in the family law arena. Yet, they seem to “afford” a lawyer, (no doubt because of
the importance of what brings them to court). In other words, they are highly motivated to afford
a lawyer. Maybe, with all the legal information and legal services that are available to self-reps in
family law, the participants are simply not so highly motivated. And, if they are not sufficiently
motivated to hire a lawyer, where is the evidence that they would be motivated to hire a paralegal?
Assumption #2: “The self-represented litigant problem is growing to crisis levels”
We have no doubt that there are too many self-represented litigants in our courts. There have
always been too many self-represented litigants in our courts. We believe every litigant has the
right to counsel and that our system would function more efficiently and effectively if there was
counsel available to everyone. Our concern is that action is being undertaken today without having
an accurate and complete, current picture.
The report from the Honourable Justice Peter Cory delivered to the Attorney General in May 2000
about regulating paralegal practice in Ontario noted (in Chapter IX) that 50 – 85% of parties
appearing before judges of the Provincial Court were unrepresented. If true, the level of
unrepresented litigants has not changed in the past 15 years. But it is also true that there has been
no study of the root causes of this phenomenon questioning why or what solutions might exist to
the problem. We also note that the available research, such as the work done by Professor Julie
McFarlane at the University of Windsor School of Law, does not – to our knowledge – ever question
whether a litigant might have been represented at some point in the litigation process. Anecdotally,
our members report that in many cases a “self-rep” is of that status after having a lawyer for at
least one or two other parts of the process. In many cases, the “self-rep” is of that status after
having received advice from counsel that they did not like or expect. In other words, in many cases
the lawyer has advised one course of action, such as a settlement or mediation, but the emotion
that almost inevitably accompanies a family case has gotten in the way of a rational decision. We
believe this to be the circumstance in at least some cases, but we believe more work and study
needs to be done to quantify how many cases this might represent. Expanding scope of practice
for non-lawyers would do nothing to help in this circumstance, except to potentially extend the
litigation process and increase court costs.
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Assumption #3: “Paralegals are less expensive than lawyers”
The Federation commissioned research on this very question and the conclusions from a survey of
available sources across North America show that “surface pricing” of paralegals are indeed less
expensive than lawyers. Our research conducted by respected research firm Corbin Partners also
sought out any sources or quantitative work that compares the total cost of paralegals versus
lawyers to the legal system. No such research could be found.1
Our belief, which needs to be tested further to confirm our hypothesis, is that the cost-differential
between a paralegal and a lawyer would be reduced if an accurate “system-wide” view of costs
could be done. We believe that the extra training provided to lawyers do, in many cases, enable
lawyers to conduct interactions with their clients or the legal system more quickly, thus reducing
the overall cost. (In our response to Recommendation #16 above, we lay out a simple example that
illustrates this point.)
A further and more detailed examination of total system cost would need to look at the relative
efficiency of lawyers and paralegals in the courts, for example. Anecdotally and based on
conversations with judges, we believe that many interactions in court are dealt with more
efficiently and quickly when both sides are represented by lawyer counsel. If one side was
represented by a paralegal, instead being self-represented, presumably it would be somewhat
better for the system and for the litigant, but the degree to how much better is questionable.
The Canadian Research Institute for Law and the Family conducted a 2012 survey with Alberta
family law lawyers about experiences with self-represented litigants. In this study, participants
were asked about alternative approaches to legal representation, including the delegation of legal
services to paralegals. The findings of the study include the following:
“Most lawyers expressed concerns about the quality of Paralegal’s work, the possibility
that their services could increase litigants’ expenses or require remedial work to repair
(31.6%), and that paralegals lack the necessary training, skills and expertise to provide
legal services (21.1%) …”
“Among respondents commenting on the suitability of paralegals to provide legal
services, judges believed that paralegals should be restricted from giving legal advice
and providing advocacy services. A fifth of lawyers expressed concerns about the
adequacy of paralegals’ training, skills and expertise to provide legal services, and
almost a third expressed concerns that paralegals provide poor quality service which
may delay the conclusion of a dispute or require additional expense to correct.”
Our own survey of members came to similar conclusions. There is a high degree of skepticism by
members of the bar that the quality of work done by paralegals will be such that it will not require
remediation and additional cost to other litigants or to the justice system. We acknowledge that

1 Reference is to Corbin Partners’ “Market Reconnaissance Study” examining fees of private practice
paralegals and lawyers. Study was commissioned by the Federation of Ontario Law Associations. Text of the
study can be provided upon request.
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this skepticism is not without its own bias, but it is nevertheless a consideration that we feel the
Attorney General and the Law Society should be looking at very closely.
On a related note with respect to the quality of advice and cost to the system, it is notable that
currently in a circumstance where one side in a dispute is represented by a lawyer and the other is
self-represented, the judiciary are left in the difficult position of attempting to guide the selfrepresented litigant without actively assisting them and breaching the rules of court. While the
judiciary would be spared this difficulty if a paralegal was present for the self-represented, the court
would be absolutely bound to accept the submissions of the paralegal. In this circumstance, it is
presumed that both sides are represented by competent counsel, but in many cases, there would
be an imbalance of competence and experience if one side had a lawyer and another a paralegal,
which could lead to other problems and costs to the justice system, especially on appeals.
Assumption #4: The assumption that there are “simple” divorces and family law matters
All throughout the Report, Justice Bonkalo refers to “documents” and “forms” that could be
completed by a knowledgeable professional (like an unsupervised paralegal) who simply plugs
numbers into a formula or “checks boxes” and follows the proper procedure. We strongly disagree
with this description.
The “documents” and “forms” that she is referring to are “PLEADINGS” and “AFFIDAVITS” and
“SWORN FINANCIAL STATEMENTS.” Every document that is served and filed in a family court
matter could be highly prejudicial to a
client. A great deal of thought must be
put into each document.
Additionally, a major problem in the
Report is found in the list of
“prescribed areas of family law that
are typically, but by no means always
less complex than others” that
Paralegals should be permitted to
practice without the supervision of a
lawyer at every step of court except a
trial. In addition, many areas of family
law are usually intertwined with the
same list of services that the Report
says Paralegals should not be
permitted to provide. The Report
provided no clarification or answer on how to deal with this problem.
In the experience of our members, there are rarely circumstances where a divorce is “simple” and
can be dispensed with through a formula or simply following the procedure. Putting aside the highdegree of emotion that inevitably comes with a family law matter, there are many dozens of
statutes and law that must be dealt with, and there could be even more depending on the
FOLA DOES NOT ACCEPT THIS GENERALIZATION
THAT THESE AREAS OF LAW ARE “LESS COMPLEX”
… WHEN PEOPLE HAVE EXHAUSTED ALTERNATIVE
DISPUTE RESOLUTION SERVICES AND THEY GO TO
COURT, IT IS VERY RARE THAT THESE MATTERS
ARE “LESS COMPLEX.” IN FACT, WHEN PARTIES
HAVE NOT BEEN ABLE TO REACH A RESOLUTION
OUTSIDE OF COURT, IT USUALLY MEANS THAT
THEY ARE EXPERIENCING A HIGH LEVEL OF
CONFLICT AND/OR COMPLEXITY IN THEIR
SEPARATION
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complexity of the case and whether the matter touches business ownership issues, matters of
taxation or even criminal law. Moreover, the diversity of issues and laws that must be dealt with is
high. Everything from real estate to child protection and custody, immigration law, mental health
issues and dozens of other factors contribute to making family law incredibly complex.
It is the experience of most family law practitioners that it is very rarely evident in the first meeting
that a divorce or other matter is, in fact, “simple”. On the face of it, a divorcing couple with a joint
ownership of a primary residence and no children could seem to be a “simple” matter, but often
after the initial consultation, other matters such as ownership of a business, immigration status or
other factors emerge. In other cases, power relationships and potential abuse are not well
understood or identified as risk factors until well after the initial consultation. Would a less welltrained professional pick up on all those factors and understand the rights and responsibilities for
each party in the initial consultation? What if that professional gets that initial assessment wrong?
Who picks up the pieces then?
Further, the idea of expanding scope of practice so that non-lawyers could do the less complex
matters ignores the economic reality of a professional services practice (regardless of whether it is
a law practice or any other). The less complex matters in a law office are very often assigned to
support staff (law clerks and articling students) to conduct the labour under the supervision of the
lawyer such that the client gets the benefit of a proper job under proper advice for the least cost.
We fear that “cream skimming” the so-called simpler cases could, in fact, drive more lawyers out
of the family law practice (and maybe out of law altogether) by making it economically unviable to
practice. How will that help “access to justice”?
Summary/Conclusion
The evidence and the assumptions that are forming the basis for the Report’s push to expand the
scope of practice for paralegals and other non-lawyers in the name of expanding “access to justice”
is simply not clear and what little exists is not compelling.
As one of our Committee noted, when confronted with the argument that hiring a licensed
paralegal rather than a lawyer on an hourly basis would be significantly less expensive than hiring
a lawyer, he said: “No basis is given for this statement … (it is made) as a result of Socratic reasoning
which prima facia would seem logical but has shown time and again not to be the case in other
areas where paralegals compete with lawyers such as Small Claims Court and various tribunals.” In
fact, our research across North America has concluded that there is a lack of evidence – one way or
another – to prove either hypothesis.
The report of the research commissioned by the Federation concluded:
Based on an investigation of existing market intelligence, using a wide variety of sources
within Canada, the US and the UK, it leads to the following inferences:
➢ At the surface, there is a general impression given that the legal fees charged to
clients by paralegals are lower than fees paid for similar services provided by
lawyer.
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➢ When delving deeper into an assessment of total case fees for comparable legal
matters, we learn that there are doubts and uncertainties expressed in the legal
marketplace on whether there is a significant cost difference at all.
➢ However, while anecdotal evidence exists to question comparative pricing, there
is a lack of empirical evidence to gauge this issue. Fees for the services of a
lawyer continue to be tracked in the Canadian market (nationally and by
province). Similar tracking has not been found for the regulated paralegal
market.
Even in the jurisdictions that have moved to expand scope of practice for paralegals and nonlawyers, such as in Washington State, we can find no empirical or published evidence that the move
has resulted in the promised improvements in access to justice or even that there are currently
studies being done to test this question.
On the question of cost and value of various lawyer and non-lawyer service models; on the question
of scope of the problem of self-represented litigants; and on the questions of impact that such a
move to expand scope of practice will have, too many questions remain unanswered and too many
doubts exist to confidently draw the conclusions that lead to a policy of expanded scope of practice.
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THE CASE FOR LAWYERS … AND THE RISKS ASSOCIATED WITH EXPANDING SCOPE OF
PRACTICE FOR PARALEGALS
Family law, especially as practiced in Canada, is an extremely complex area of law requiring the
combination of proficient technical skills and an adept personal touch. Family lawyers need to be
knowledgeable on dozens of statutes and the precedents coming out of the family law courts are
constantly evolving the jurisprudence of family law.
It has long been our feeling that only well-trained lawyers can adequately serve family law clients.
Only lawyers have the depth of knowledge of the relevant family law statutes, and many other
aspects of the law, such as real estate, corporate/commercial law, immigration law, mental health
law, criminal law and many others. In some ways, the best family law lawyers are not really
specialists, but deeply knowledgeable generalists who apply their expertise to emotionally charged
family breakups.
At a system level, the Law Commission of Ontario notes that:
“There are several challenges in describing and assessing Ontario’s formal family justice
system. There are many actors involved and there is a fragmentation of services … The
organization of the courts and the multiple forms of non-judicial dispute resolution are
another factor. In Ontario the diversity of community organizations linked to the system
is another reason for local differences and sometimes a fragmentation of services. …
Family law in Ontario is an area of specialists.”2
We believe that lawyers are best suited and trained to navigate these complex family law waters.
A lawyer’s education, temperament, breadth of knowledge, regulatory oversight and insurance
requirements make them uniquely qualified to work in the complex, multi-faceted field of family
law.
The admission requirements for lawyers entering law school examine intellect, temperament and
reward the social and rhetorical skills that good advocates need to be successful. Law school, when
at its best, is less an exercise in technical skills development than it is a forum for the development
of skills in “how to think” and solve complex problems. The licensing and regulatory regime for
lawyers encourages professionalism and the development of systems to efficiently manage
complex files. The continuing professional development requirements for lawyers are rigorous and
ensure that lawyers stay up-to-date on all aspects of the law that they need to know. For the
circumstances where lawyers lack specific knowledge, they are trained in specialized research skills
and have access to a network of law libraries across Ontario that allows them to remain current.
The insurance regime for lawyers is comprehensive and risks are well known and tested.
In each of the above areas, paralegals and other non-lawyer professionals do not have the depth of
experience or skill as lawyers. The insurance regime for family law practitioners will need to be

2 http://www.lco-cdo.org/en/family-law-reform-interim-report-sectionIII
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reconsidered and, if the risks do not balance, could cause the entire insurance regime to be thrown
out of balance, raising the costs for everyone and this cost is inevitably passed along to clients.
In our view, even if there was a specialized education and skills development regime set up to raise
the skill-level of paralegals to allow them to practice family law, we do not fathom how it could
become rigorous enough to overcome these challenges. Our view of the possibility of paralegals in
family law has not changed substantially from the views expressed by Justice Cory in his report on
the topic in 2000.
In that report, the Honourable Peter Cory delivered to the Attorney General of Ontario a possible
framework for regulating paralegal practice in Ontario. Chapter IX of that report deals with “area
of permissible practice – Family Law…” Cory states: “It must be remembered that Family Law is
fraught with complexities and replete with legal pitfalls.” After referring to members of the bar
who had made submissions to the effect that there was no such thing as a simple divorce and that
paralegals should not be permitted to proceed even with an uncontested divorce The Honourable
Mr. Cory stated:
“I see no reason why licensed paralegals should not be authorized to undertake
uncontested divorce proceedings in any of three circumstances: first where the parties
have no children and no significant assets or the assets are jointly held; and if there is
no need for, or no issue outstanding, as to spousal support; second where the
proceedings are commenced within one year of the execution of a Separation Agreement
which resolves all collateral concerns; third, where there was a Court Order resolving all
of the ancillary issues granted within one year of the commencement of the divorce
action. In any of these circumstances, licensed paralegals should be entitled to
undertake uncontested divorce proceedings.”
While Mr. Cory might be correct, we simply do not believe that there are very many of these types
of cases to be found in the system. So, should these recommendations be followed, not much of
substance would change to address the challenge of self-represented litigants. A typical selfrepresented litigant is not dealing with an uncontested divorce.
On the issue of “is there other work in this field, for example drafting Separation Agreements, that
can be undertaken by paralegals?” Cory said that he would be opposed to any licensed paralegal
drafting a Separation Agreement. “This requires a sound knowledge of the law, property and
contract law as well as family law. Quite simply, it is too complex an area for licensed paralegals…”
As Cory notes, the complexity of the law, beyond the most straightforward of cases, are best
handled by licensed lawyers who have the specialized training.
In connection with the suggestion that paralegals should give advice in connection with custody
and access, division of family property and support and maintenance Cory stated:
I worry about a paralegal giving advice of this sort. It is the custody and access cases
that determine, not only the best interest of the children involved, but also to some
extent the future of our country. The best interest of the child will always be paramount.
A consideration of children’s best interests must include custody and access
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entitlements…questions of child custody, access and support are of fundamental
importance. Yet they raise legal issues of great complexity, very often involving the use
and division of property both real and personal. The more complex the situation the
more likely a mistake will be made in giving advice. Only a lawyer should give advice in
this area.
So, Justice Cory’s review opens the door for paralegals in family law, but the restrictions that he
feels are prudent – and to which we concur for all the reasons noted – are so restrictive that one is
left to wonder whether they would have any impact on the self-represented litigant issue at all.
Would sufficient system resources be freed up if uncontested divorces could be done by paralegals
or other non-lawyer professionals? We have our doubts.
BETTER OPTIONS TO CONSIDER
A significant challenge that the practicing family law bar cannot deny is the fact that we have a
financial stake in the outcome of this debate, making it very easy for the proponents of paralegal
access into family law to paint lawyers as being solely financial motivated and fearful of competition
in their opposition to what is being proposed. However, FOLA is not arguing against expanding the
scope of paralegal practice from its own economic self-interest. FOLA does not dispute the fact
that the family justice system faces some significant challenges and that changes are needed to
help overcome those challenges.
In this next section, we offer some comments on what, we feel, are better and more impactful
options the Review should consider on the question of how best to make our family courts more
accessible to more people. There is a cost consideration to some of these ideas, but many are lowcost, practical ideas that could be done with existing resources or modest (and necessary and long
overdue) investments.
We appreciate that the field of family law is complex and reforming the family law system will
require many inter-related reforms and changes. That is why this menu of choices is being offered.
Unified Family Courts
In Ontario family law matters are heard in the Ontario Court of Justice, the Superior Court of Justice,
or the Family Court branch of the Superior Court of Justice, depending on the issue in dispute and
where you are in the province. There are presently seventeen unified Family Courts of the Superior
Court of Justice located across Ontario in Barrie, Bracebridge, Brockville, Cobourg, Cornwall,
Hamilton, Kingston, L’Orignal, Lindsay, London, Napanee, Newmarket, Oshawa/Whitby, Ottawa,
Perth, Peterborough, and St. Catharines.
Where the unified Family Court branch exists, the court hears all family law matters, including
divorce, division of property, child and spousal support, custody and access, adoption, and child
protection applications. In all other sites across the province, family law matters are divided
between the Ontario Court of Justice and the Superior Court of Justice, and this inefficiency –
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especially in the largest population centres of Toronto, Peel, Halton, etc. – is contributing to the
challenge. Inefficiency and inconsistency across the province in the way the courts handle family
cases contribute to the cost that has been borne by all clients.
We feel that investing in the expansion of the Unified Family Court across Ontario will result in
substantial efficiency gains and make the entire system more accessible for everyone. We are
encouraged by the recent announcements of the Federal and Provincial government and would
encourage that these investments be made sooner than later so that the benefits to the system can
be realized sooner than later.
Making Case Management More Accessible and More Effective
The Case Management system under the Family Law Rules was developed because many family law
lawyers, judges and social scientists believe that an effective and accessible family justice system
requires pre-trial and post-trial case management by a single judge, an approach to family justice
reflected in the slogan: “One judge for one family.” Judges should have the necessary knowledge,
skills, and training needed to resolve family disputes and to help effect changes in parental
behaviours and attitudes, as well as the willingness to collaborate effectively with non-legal
professionals.
“One judge for one family” is what true Case Management is supposed to be, i.e. “a single judge
who deals with conferences and motions and both procedural and substantive issues” and that
judge has “the necessary knowledge, skills and training needed to resolve family disputes and help
effect changes in parental behaviors and attitudes.” Under a “one judge for one family” model, our
experience is that the family justice system is much more effective and accessible.
The nature of family law disputes requires that the litigants receive consistent messages, directions
and orders from judges that have the education, training and experience in dealing with family
cases to ensure that the cases are being effectively dealt with in an efficient manner. This is
especially important to self-represented family law litigants who do not have lawyers to help
manage their behaviors or understand their rights and obligations which can help to minimize the
conflict. If one judge is familiar with the litigants and the facts of their case, this can ease the
frustration of the parties and lower the level of conflict. It can also ensure that there will be less
inconsistency in the approaches and more effective enforcement of orders.
Presently, Case Management is only available in cases in the Family Court of the Superior Court of
Justice which jurisdiction is limited to those municipalities listed in Family Law Rule 1 (3). In some
of those communities, the Case Management system is well established and runs smoothly.
However, this is not the case in some communities where the judicial and court resources are
strained and there may not be enough judges to provide true Case Management.
Introducing a paralegal or other non-lawyer professional into the process has the potential to
confuse and mitigate any of the benefits that come about from unified case management because
one could foresee a circumstance where a party will be represented by multiple professionals,
depending on the scope of practice being considered.
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On a related note, the Family Law Rules currently force parties to attend a First Appearance, Case
Conference and Settlement Conference and then even a Trial Management Conference where the
judge has no power to make a decision, unless reached on consent, or for purely procedural
matters. This process can become very expensive and creates opportunities for delay and costs.
Families in conflict and separation need options that assist them in finding quicker resolutions and
a simpler process to get some results. Some changes need to be made to the Rules to provide for
proportionality and help simplify and stream-line the process and the documents.
More Effective use of Mediation
Many costs and delays are a result of parties who commence a court action when it was not
necessary. Many family law matters could (and should) have remained out of court in the first
place. In our experience, if one or both parties had retained a lawyer, they may have been
redirected to alternative dispute resolution services like mediation, collaborative or cooperative
processes to negotiate a resolution out-side court. Despite the many common-sense solutions
available outside of court, many self-represented and unrepresented parties are simply unaware of
or are suspicious and ill-informed about alternative dispute resolution and so they forgo any
attempts to settle their issues amicably choosing instead to go straight into court.
Most Comprehensive Family Law Mediators operate under three strong principles. These principles
are: “Voluntariness; Fairness & Autonomy; and Do No Harm.” These principles help family law
mediators to use their skills (active listening, reframing, emotional intelligence, trust building
exercises and an understanding of the role of anger) to build a safe process that recognizes and
addresses power imbalances and helps parties to find an alternative resolution to their conflict.
We are aware that family mediation services are now available at every family court location (albeit
with variable hours), but we are particularly bullish on the model being employed in The County of
Simcoe. In Barrie, “The Mediation Centre” is a group of social workers and lawyers who greatly
assist in many cases in either narrowing the issues or resolving some cases in their entirety (many
times before the parties have ever entered a courtroom). This service is geared to income, so the
parties pay very modest fees. They also have “on-site” services wherein parties receive up to one
(1) hour of mediation services free of charge. The Federation recommends the replication and
support of this model and ones like it across the province. The cost to expand such a service would
be minimal and we anticipate could be found from savings associated with fewer court
appearances.
Family Law Information Centres
Much of the social science done in the field recommends providing greater access to information
to litigants early in the process. With more information, litigants can make better decisions and
know where to find the right support. The Family Law Information Centres have proven to be a
helpful resource in filling this need.
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We recommend continued support for FLICs and an expansion of their hours of operation to include
evenings and weekends, where practical. Right now, some FLICs have very limited service hours
that do not even cover court sitting hours. Expanding hours, particularly at non-unified family court
SCJ locations will have a profound impact. A further improvement could be made with the addition
of an Advice Lawyer located at every FLIC and adding more hours for that service where it exists
now.
Steps should also be made to improve access to information on where the FLICs are located.
Presently, when searching for FLICs on the Ministry of the Attorney General web-site, for example,
the search directs you to a page of all courthouses, regardless of whether there is a FLIC on-site.
This is confusing to a trained practitioner knowledgeable in Ontario’s court system. It is practically
opaque to an untrained person.
We also believe that a small investment in making more of the information available at FLICs
available on-line and through a toll-free information line would be a wise and worthwhile
investment.
We commend the Ministry for providing the brochure “What you should know about Family Law in
Ontario” in nine languages, but we would strongly recommend that many more languages be
added. According to the Statistics Canada Linguistic survey of 2011, there were more than 200
languages commonly spoken in Canada. Consideration should be given to making the brochure
more accessible by changing from a text-dense 42-page document to something interactive that
utilizes graphics, pictures and (in an on-line version) video to make it more user-friendly.
Consideration might also be given to tailoring the brochure to different populations such as
mothers with young children, fathers, couples without children, etc. so that the information is
presented in a more tailored fashion, rather than in such a general brochure, and steers the
individual in the right directions for other resources, including help from a lawyer.
Another suggestion is to have each of the FLIC offices equipped with computers, software and
printers to assist in Family Form completion. Some FLICs have access to such equipment, but most
do not. This would be a very simple and relatively straightforward initiative that could help many
people.
By making information more accessible earlier in the process, we anticipate that many family law
cases can be dealt with earlier, before the confrontational litigation process starts and feelings are
hardened even more.
Improvements to the Mandatory Information Program
Presently every litigant (applicant and respondent, moving party or responding party) must attend
a 1.5-hour presentation where a lawyer reads a set script about the family court and the alternative
dispute resolution options that are available. No one can ask any questions in this “Mandatory
Information Program” (MIP). They must have a certificate of attendance signed. The lawyer
conducting the session is volunteering their time for this. Many of the lawyers who provided input
to this submission do not feel the MIP is achieving what it set out to do. Most litigants need this
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type of information prior to the court action being commenced, not after. If hours at the FLIC were
expanded and Advice Lawyer and Mediation services were also expanded and offered equally
around the province, we feel that would go a lot further to educate parties on options that are
available to them and discourage unnecessary litigation.
Some of the information in the MIP would be very helpful to newly separated parties before they
commence an Application in court.
Collaborative Practice, Cooperative Practice, Early Neutral Consultations, Limited Scope
Retainers, Unbundled Legal Services, Day-of-court Counsel and other innovations:
Many of the lawyers that are attracted to the practice of family law do so out of a genuine wish to
help families. By offering Collaborative Practice, Cooperative Practice, Early Neutral Consultations,
Limited Scope Retainers and unbundled legal services, lawyers can provide some relief to the selfrepresented and unrepresented litigant and divert their clients from the family court. These
services offer lawyers an opportunity to become problem solvers and peacemakers and show the
public and the judiciary how lawyers care about their clients, about family law and access to justice.
Collaborative Practice is a process focused on settlement such that the lawyers enter into a
participation agreement signed by all parties and counsel that they will not bring the matter to
litigation. They often form a “team” including the lawyers, a family therapeutic professional and a
financial professional. The primary objective is to assist the parties in achieving a reasonable and
thorough settlement that is in both the clients and the children’s best interests.
Cooperative Practice is a process where the lawyers create and provide a constructive and efficient
negotiation process for the parties. The parties and lawyers do not enter a contract where they
agree they will not go to court; however, they work collegially and cooperatively together to help
minimize or lower the conflict and manage their client’s expectations. They also practice with a
good sense of proportionality to the legal and financial resources available to them and their clients.
Early Neutral Consultations provide legal information and neutral consultations to separating
couples. They are family law facilitators that provide legal information and contacts to parties so
they can choose the direction of their separation or divorce. They try to assist the parties in putting
their families and children first by working as a family unit in making decisions. They provide a safe
environment for separating couples and their families and assist the families in saving family
resources.
Limited Scope Retainers and Unbundled Legal Services are “the provision of legal services by a
lawyer for part, but not all, of a client’s legal matter by agreement between the lawyer and the
client.” These services generally include: consultation and legal advice; document preparation;
and limited representation in Court. Consultation includes a lawyer providing advice and direction
in “typically a short meeting or phone call” about the legal and/or procedural issues in the matter.
The lawyer could also provide the litigant with an evaluation of their case. Document preparation
“typically involves getting a lawyer’s assistance as to the form and content of a contract, court
pleading or other legal document.” It could also include, “reviewing or preparing correspondence
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or documents, factual investigations, legal research.” Limited representation in court could take
place “in court, an administrative hearing, at a mediation, etc.: Typically, where a lawyer provides
assistance with a single appearance in court or at a hearing, or for work and appearances for a
particular stage of a matter.” Representation may even include, “examinations for discovery,
planning negotiations, planning for a court appearance, providing support during a trial or assisting
with an appeal.”
On February 3, 2015, The Action Group on Access to Justice hosted a unique program to “explore
limited scope retainer and access to justice.” Additionally, on October 26th, 2015, the Law Society
aired a webcast presentation on the topic of Limited Scope Retainers for Family Law Lawyers.
These programs had speakers “with extensive experience using limited scope retainers” and who
promoted the “development of new ideas about how they may be implemented in a variety of
practice settings.” With the increase in the numbers of self-represented and unrepresented litigants
in family court, encouraging limited scope retainers and unbundled legal services is a simple way
that lawyers can be part of the solution and could greatly assist the courts, the litigants and the
community. Promotion and expansion of this idea could help the courts and the province without
it costing any public monies.
The Law Society has amended the Rules of Professional Conduct to allow for Limited Scope
Retainers and provide some guidance to lawyers of their additional obligations regarding this type
of work. LawPRO has also contributed immensely to developing practice resources for “Best
Practices” which can be found on their website.
In Simcoe County, a panel of lawyers that call themselves the “PLUS Panel” (Private Legal
Unbundled Service Panel) has formed. The lawyers provide specific limited retainer legal services
at reduced rates or on a block fee system. Initial proposals that have circulated are to have a
financial eligibility test and practice guidelines, however, at this time, the private bar is setting their
own rates and entering these retainers privately with their clients. Most importantly, we have met
with the lawyers and judiciary to educate them on this service and provided retainer precedents
and discuss challenges. There is some movement now to expand to create a “private duty counsel”
panel, (as described below) that could make lawyers available for one-day appearances at
Settlement Conferences, Trial Management Conferences and Exit Pre-Trials. The PLUS panel
initiative has the support of the local judiciary and mediation centre.
Another innovation that we strongly endorse for further study is the idea presented by Stacy
MacCormac, a practitioner in Cobourg, Ontario, who has proposed an “Onsite – On Demand – Day
of Court – Limited Scope Retainer Private Counsel” model that holds promise for helping many family
law litigants, at a low cost. Her model maintains the role of lawyers at the centre of the family law
transaction. A full description of Ms. MacCormac’s proposal is provided as Appendix A to our
original submission, which is available on our FOLA website: http://www.fola.ca/family-lawreforms.html (see page 19)
These innovations in the provision of legal services need to be encouraged and promoted by the
Law Society and Attorney General. If there are regulatory or practice-guideline barriers to the
greater adoption of these practices, they need to be looked at and ameliorated. If there are
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professional liability insurance considerations that are barriers to adoption of these practices, those
should be dealt with as more practitioners utilize these models and the insurers become more
familiar with the risks. If there are education barriers, the Law Society and every advocate for
reform should be hosting even more continuing professional development. If not enough lawyers
know about these options, greater promotion should be done of the benefits of these practice
innovations.
In our view, an expansion of the scope of practice for paralegals and other non-lawyer professionals
may make the economics for these alternative retainer arrangements, and especially limited scope
retainers, even more untenable and unattractive to lawyers. If a paralegal can offer “to be by your
side every step of the way” (though with less expertise and experience) for the same price as a
limited scope retainer provided by a lawyer, the client may well believe they are better served by a
paralegal, when in fact the evidence suggests they might not be. . If the competition for limited
scope retainers grows in this
way, we predict a perverse
economic impact and fewer
lawyers will offer the service and
many others will leave the
profession. Since limited scope
retainers and these alternatives are relatively new to the market, we strongly recommend that they
be given time to gain traction before threatening their existence with new competition.
Strong and Continued Support for Duty Counsel and Legal Aid Certificate Programs across
the Province
No discussion of access to justice can be offered without a word about Legal Aid and a reiteration
of the important role of both certificates for the private bar and of duty-counsel to the service of
lower-income Ontarians. The Federation applauds the Attorney General and Ontario government
for the recent infusion of new money, including the money that has helped to raise eligibility and
expand certificate eligible services. This money is welcomed and it is making a difference. There is
clearly a demand for this service as attested by the higher than forecast subscription which has
resulted in the deficit and subsequent pull back of certificates. As a result, Legal Aid also remains
inadequate. The demand for legal services by lower and middle-income Ontarians remains high
and continues to grow in the family law space.
We encourage the Attorney General to continue to make the case to his Cabinet colleagues that
further investments in legal aid continue to pay strong dividends. We will continue to stand
shoulder-to-shoulder with the Attorney General, the judiciary, the Law Society and many others in
making that case.
We also reiterate our long-held position, borne out by the facts and experience, that the privatebar certificate and per diem duty counsel system remains the most efficient way to deliver legal
services to the legal aid eligible population.
QUANTITY OF SERVICE DOES NOT EQUATE TO
QUALITY OF COUNSEL
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CONCLUSIONS
After careful consideration of all the questions, review of the research that we have commissioned
and the research cited by Justice Bonkalo in her report, a survey of our own members across Ontario
and many hours of debate and deliberation, we have come to a few conclusions and offer a few
final observations which we hope will be considered as by the Benchers of the Law Society.
First, we recommend that much more study and challenge of the assumptions that are
underpinning this proposed shift in policy needs to be undertaken. No jurisdiction – that we can
find – that has expanded scope of practice for non-lawyers has done the longitudinal study or
analysis to determine whether costs have come down or if more litigants are, in fact, being served.
And even if more litigants are getting some counsel, questions of quality and the additional cost of
repair or mitigation have never been examined. These are questions too important to be left to
supposition, especially considering the stakes at hand.
Second, we believe that there are many innovations in the provision of family law, such as those
laid out in this paper, that deserve to be given a greater chance to grow and succeed. These
innovations need to be promoted, encouraged, funded and made universally available across
Ontario. Many of these innovations, such as limited scope retainers and “day of court counsel,”
have been phenomena for less than two years and are just starting to gain traction. Adding
competition from non-lawyer professionals now might make the economic case for many of these
innovations unsustainable.
Third, there are reforms and investments that should be undertaken in the administration of our
own courts that can help the situation dramatically. Making a unified family court available across
Ontario would be a great place to start. An examination of the rules in family court, with a view to
removing cost and streamlining process, will also bear fruit.
Fourth, the behaviour and actions of the Ministry of the Attorney General and the courts
administrators must stop sending contradictory messages when it comes to access to justice in
family law. For example, last year the Attorney General gave notice of a fee hike3 on certain SCJ
cases and, for the first time, on OCJ family matters. These new charges came into effect July 1, 2016.
On the one hand, the mandate to Justice Bonkalo lamented that lawyer fees are too costly for many
litigants, and on the other hand, at the same time, the Ministry raised fees and costs directly borne
by those same litigants. This contradictory message is very disappointing to many family law
practitioners and to our clients.
Fifth, and perhaps most importantly, lawyers arguing for the maintenance of their rightful place in
the family law justice system may seem to be entirely self-serving, but we firmly believe that every
one of the arguments being presented are crafted with the public interest in mind. There is no
doubt that should these recommendations be turned into policy and a program is set up to allow
an expanded scope of practice for specialized paralegals that there will be an economic impact to
lawyers. But for us, this economic consideration is a secondary one. The result will likely be fewer
family law lawyers practising in Ontario – a real impact to the practising bar, to be sure – but more

3 http://www.ontariocanada.com/registry/view.do?postingId=21402&language=en
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importantly for the public, they will have fewer family law lawyers to choose from. Similarly, the
recommendations offered to reform other aspects of the family law system (Unified Family Court,
limited scope retainers, etc.) are all reforms that
will have positive and lasting long-term benefits
for family law litigants. Many of the reforms we
are suggesting could have disruptive and even
negative consequence to the business of family
law lawyers, but we make the recommendations
because they will benefit the public.
Should the Law Society choose to take the advice
of Justice Bonkalo and expand scope of practice,
we strongly urge that actions be taken in a slow and measured manner. There is simply too much
at risk and the economics of family law are already precarious enough that any action taken to
dramatically shift the practice will drive many practitioners out of this field. Losing this expertise
and years of experience will be difficult to replace. In short, replacing quality with quantity will
simply not yield the results we all desire.
We all genuinely desire to see a better and more efficient family law system in Ontario that serves
the needs of every family law litigant that enters the system. It is in this spirit of genuine desire to
make the system better that we have offered this submission and look forward to continued
dialogue with the Law Society, Attorney General and any other stakeholder that is charged with
making our family courts operate better.
Submitted on behalf of the Federation of Ontario Law Associations.
Jaye Hooper
Chair, Federation of Ontario Law Associations
Sonya Jain
Chair, Family Law Committee