On a Slow Train to Nowhere: Paralegal Family Law Practice in Ontario

Slaw.ca Legal Ethics Column, August 11, 2022

Found online at: https://www.slaw.ca/2022/08/11/on-a-slow-train-to-nowhere-paralegal-family-law-practice-in-ontario/

Every year, tens of thousands of Ontarians go through divorce or separation. Should these people have access to family law services provided by non-lawyers? What if these service-providers were paralegals trained in family law, insured, and regulated by the Law Society of Ontario?

At present, the official answer is no. No one who is not a full lawyer is allowed to engage in any independent family law practice in Ontario. However, multiple expert reports have endorsed paralegal family law practice for Ontario.

The Case for Paralegal Family Law Practice

The case for this reform is straightforward. The majority of separating people are now self-represented. Most of them would like to be represented, or at least assisted, by a professional advocate. Most proceed without this help because they find lawyers to be unaffordable.

Endemic self-representation makes family law much more time-consuming and stressful than it would otherwise be, not only for self-represented litigants but also for their represented adversaries and for the court system. The legal rights of many adults and children go unrealized in the wake of separation, for lack of accessible, competent professionals able to advise and advocate for people of modest means.

Paralegals charge, on average, less than half what family lawyers charge ($144 vs. $330 per hour) and are also more likely to offer flat fees. Can paralegals handle the challenges and complexities of family law? It is true that some family law cases involve very complex law, but these typically have wealthy clients who will hire lawyers anyway. The independent reports have found that there is a large group of cases in which the law is straightforward, and can be mastered in 6 to 8 months, without traversing the lengthy and expensive road to a full lawyer license.

The story so far

The Bonkalo commission (a joint project of the Law Society of Ontario and the Ministry of the Attorney General) recommended paralegal family law practice in 2016. After a lengthy series of consultations and reports to hammer out the details, the matter was scheduled for a vote at the February 2022 meeting of Convocation. At the last minute it was pulled from the agenda. The reasons given to Law Times for this move were mysterious : “the LSO received input from various stakeholders across the justice sector which required further consideration.”

Overt resistance to paralegal practice has come from some family lawyers, and from lawyer trade groups. They have generally taken the position that there is little if anything, within the sphere of family law, that paralegals can do competently. They are not persuaded by the conclusion of multiple expert reports: that competent practice can be ensured by carefully designing the scope of practice and the educational requirements.

Competition and Conflict of interest

Competition is a powerful way to make goods and services cheaper and better. However, competition is usually unwelcome to market incumbents who have previously been protected from it. Family lawyers in Ontario must compete with each other, but they have not, so far, been required to compete with paralegals.

There can be legitimate reasons to restrict competition, but history shows it is often restricted for no reason other than the protection of market incumbents. When and if competition is to be curtailed, it is essential that such decisions be made in a transparent, timely, and evidence-based way.

This is not what has happened in Ontario. Six and a half years have passed since the Bonkalo commission recommended allowing paralegal practice in family law. Each month, thousands of people go through the ordeal of separation alone, even though there are paralegals who are ready to do the training, obtain the license, and help clients for a more affordable price – if only the regulator would let them.

The Problem with Electing Regulators

This episode highlights the limitations of elected regulators, like the Law Society of Ontario, when it comes to making decisions that will hit relatively well-connected insiders (such as family lawyers) in the pocketbook. In modern democracies like Canada, almost all regulatory bodies are governed by boards of appointed experts. The Law Society is an outlier in continuing to have its Board (Convocation) chosen by elections in which legal professionals vote.

Elections are a good way to select people whose job it is to advance the interests of voters in the elections. The representatives are incentivized to serve their constituents’ interests well (in order to be elected and re-elected). The Law Society, however, is mandated to protect not the interest of lawyers, but rather the public interest. The decision about paralegal family law practice is one of those in which the public interest may run directly counter to the interests of lawyers.

Even though most Benchers don’t practice family law, they seem to be receptive to the concerted lobbying of the family law bar against paralegal competition. This may reflect logrolling — the process whereby members of an assembly who are indifferent on a certain vote support their peers who have strong views, in anticipation that the latter group will return the favour on future votes. Logrolling is among the phenomena that make it difficult for elected bodies to place the public interest ahead of private interests.

Logrolling contributes the broader phenomenon of capture, wherein a regulator comes to serve the interests of those it is meant to regulate, instead of the public interest. Capture is especially likely when the regulated entities care far more about the regulator’s decisions than the members of the public do, because they have so much more at stake. A separating person who would benefit from a paralegal option might acutely feel the absence of this option during his or her own separation experience. However once it’s over people move on with their own lives and lose all interest in the arcane regulatory problem which left them unrepresented.

Because the public is mostly indifferent, the leading champions of paralegal family law practice at the LSO are paralegals themselves. However, they are greatly outnumbered in Convocation, and unlike family lawyers none of them currently derive any income from the practice of family law. So paralegals have less skin in the game, not to mention less social prestige and organizational prowess compared to prestigious lawyers.

If the Benchers of the Law Society of Ontario wish to preserve the privilege of self-regulation, they should be careful to avoid suppressing competition and exacerbating access to justice problems – even if this is the politically easy path given the balance of power at Convocation. Ontario’s family lawyers, and the associations that they influence, should recognize their pecuniary conflict of interest on the question, and defer to neutral experts.

Frustrated by the unexplained disappearance of the licensing issue from the February 2022 agenda, a group of paralegals drafted a resolution calling for the Government of Ontario to take over direct regulation of the legal sector. Who knows? Queen’s Park might be listening.