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?

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A Good Day for Self-Regulation: The LSO’s Family Law Paralegal Proposal

Slaw.ca Legal Ethics Column, July 30, 2020

Found online at: http://www.slaw.ca/2020/07/30/a-good-day-for-self-regulation-the-lsos-family-law-paralegal-proposal/

Paralegals have been licensed to independently offer legal services in Ontario since 2007. Their current scope of practice includes tribunal and small claims matters, provincial offences, and some other legal needs. Last month, the Law Society of Ontario’s Family Law Working Group proposed that paralegals, with special training, be allowed to offer family law services as well.

The scope of practice proposed for paralegals in family law is surprisingly broad. I had expected that it might be confined to guideline child support, straightforward parenting orders, and uncontested divorces. In fact, it extends to spousal support and matrimonial property division (except in some financially complicated and high-net-worth cases). Despite the lawyer opposition that this proposal is sure to encounter, a broad scope of paralegal family law practice may become reality. If so then cynics (like me), who suspected that the lawyer-controlled Law Society would never take the initiative to significantly expand paralegal practice, will have to reconsider.

A Normative Framework for Scope of Practice

The Family Law Working Group deserves applause for this brave proposal. Whether it has identified the right scope of practice is a more difficult question. My view is that the Law Society should act so as to maximize the aggregate welfare of consumers, and would-be consumers, of legal services.

  • broader scope of paralegal practice means more options and more competition — and therefore lower prices — for legal services. It also increases the number of individuals willing to make the investment necessary to obtain the paralegal family law license
  • Conversely, a narrower scope would mean that things like spousal support and matrimonial property division would remain reserved for lawyers. Family lawyers typically have more training than paralegals. (Although it is interesting to note that a licensed Ontario lawyer can offer any family law services whatsoever despite never having taken any family law courses whatsoever outside, of the bar admission process). Requiring a full lawyer license might mean better quality, along with higher prices, for consumers of these services.

From this welfare-consequentialist standpoint, defining license scope is a balancing act between consumer interests in price, quality, and choice. Did the Working Group strike the right balance? The data necessary to scrutinize their choices does not seem to be available at this time. However the Working Group’s document does describe what seems to be a rigorous consultation process, including meetings with more than 100 practitioners, experts, and psychometricians (which is a word that I had to look up).

Let us assume that there is an objectively correct scope of paralegal family law practice, and that is the scope that will maximize the overall welfare of consumers. Perhaps the Working Group has accurately predicted and laid out that scope, based on their consultation process. However it is also possible that predicting the correct scope — even approximately — is inherently impossible ex ante.  If so, then the LSO should be prepared to gather data about the experiences of family legal services consumers, and use that data to revise scopes of practice over time.

On the Demand Side

For prospective paralegal family law practitioners, the “juice” (career opportunities) must be worth the “squeeze” (tuition and time investment to acquire the license). The Washington State Limited License Legal Technician program was recently abolished.
Protectionist lawyers or reactionist regulators in that state might be part of the explanation, but there was also very limited take-up of the program. Five years after its inception in 2015, this it had attracted only 40 practitioners. If the licensing requirements are too onerous, and/or the scope of practice is too narrow, the LSO’s paralegal family law practice experiment could meet a similar fate. It is very good to see that the Consultation Paper considers these demand-side issues, adopting “Viability” of the program as one of its guiding principles.

Competition, and Social Responsibility to the Disrupted

What about Ontario’s family lawyers? There is every reason to believe that most of them offer high-quality, highly professional services to their clients. What if the new paralegal family law license dramatically undercuts demand for their services ? What if paralegals offer services comparable to those of family lawyers, at prices low enough to significantly disrupt the market? This fear, often unspoken, underlies much lawyer opposition to paralegal practice.

The threat to lawyers may be hypothetical, or overblown. The primary market for the new paralegal practitioners may turn out to be currently self-represented people, not people currently represented by lawyers. Some, or most, family lawyers might experience new competition from paralegals, but respond in a way that leaves them doing just as well as they were before. My research with family law and other personal plight lawyers has convinced me that the stereotype of lawyers as devoted to tradition, and unwilling to experiment with new practice models, has little basis in fact.

Still, new competition can certainly devastate workers through no fault of their own. Suppose that Floyd the family lawyer has jumped through all the currently necessary regulatory hurdles in order to offer family law services. These hurdles include 7 years of education, large tuition bills and student debts, the articling crapshoot, etc. Acting in good faith, Floyd has made an enormous personal investment in being able to help people going through separation. Now suppose that Floyd’s ability to earn a living from his investment in legal education is greatly undermined by the new paralegal competition. Floyd loses his job as a family law associate. He hangs out a shingle, but there is simply much less client work available now that paralegals are in the market.

Would that be fair to Floyd? Not really. Something should be done to help lawyers who wind up in this sort of position. That may be a job for the Law Society. However the issue is not really lawyer-specific. It’s part of the bigger public policy problem of how we as a society respond to fluctuations in the demand for labour of all kinds. Floyd is really in the same boat as the auto plant worker laid off because of foreign competition, the vehicle operator replaced by self-driving technology, and the waiter laid off due to Covid-19. Government must help such people with retraining programs, unemployment insurance, wage loss insurance, earned-income tax credits, and so forth.

However concern for the disrupted must not distract the Law Society from its clear statutory mandate to make decisions with exclusive regard to the public interest. If Convocation adopts the Family Law Working Group’s proposal for paralegal family law practice — or something similar to it — then it will be fulfilling this public interest obligation, in accordance with the best traditions of self-regulation.

The Law Society’s Family Legal Services Provider consultation is open until November 30, 2020.

A Third Revolution in Family Dispute Resolution: Accessible Legal Professionalism

(2017) Windsor Yearbook of Access to Justice, Vol. 34, No. 1. (Peer-reviewed).

Innovation in family law firms can tangibly improve access to justice in Canada. This article develops that claim by drawing on empirical data and scholarship about Canadian family law. Part 1 explains how and why legal needs arising from the dissolution of intimate relationships are so difficult for the parties to meet.  This Part draws on civil legal needs surveys, surveys with lawyers, and data from interviews with litigants. The focus shifts to family law firms (including sole practitioners) in Part 2, using new empirical data about the Canadian lawyers who do this work. Three promising opportunities to innovate for accessibility in family law practice are identified: (i) innovative fee structure; (ii) innovative service variety; and (iii) innovative division of labour. A “third revolution” in Canadian family law is proposed in Part 3.  Our family law doctrine was revolutionized beginning in the 1960s, and family law alternative dispute resolution was similarly transfigured beginning in the 1980s. It is now time to foment a third revolution, in family law practice accessibility, to bring the benefits of family justice to all Canadians who need them.

Full text online: https://ojs.uwindsor.ca/index.php/WYAJ/article/view/5009

 

Reforming Ontario’s Family Justice System: An Evidence-Based Approach

by Noel Semple and Nicholas Bala

(2013) Report commissioned by the Association of Family and Conciliation Courts, Ontario Chapter. 20,000 words.

Full text: http://afccontario.ca/wp-content/uploads/2015/11/Semple-Bala-Family-Justice-Reform.pdf

Also available at: http://ssrn.com/abstract=2366934

 

This Report summarizes research about justice system responses to family disputes, makes recommendations for government action based on that empirical evidence, and identifies some as yet unanswered system design questions requiring further study. This document is provocative as it is premised on a realistic appreciation of the nature of family disputes and the limits of government action, especially in the present fiscal environment, and the fact that there are issues related to family justice that research has not adequately addressed and hence development of public policy must be undertaken in the face of uncertainty. Continue reading

The Settlement Mission in Custody and Access Cases

(2013) Working Paper.

This article reports on empirical research into family justice system workers, and their approach to child custody and access cases.  The child custody evaluators whom the author interviewed have formal roles that appear to require analytical decision-making about the best interests of children.  However, the central finding of this research is that these professionals are actually pursuing voluntary settlement between the adult parties as their primary goal.  This article then proposes an explanation for this observed phenomenon, based on the evolution of custody and access law and procedure over the past 30 years.  The rise of the “logic of durability” seems to offer a convincing explanation for the concerted pursuit of settlement among both child custody evaluators and judges.

Online: SSRN, http://ssrn.com/abstract=2101819.

Mandatory Family Mediation and the Settlement Mission: A Feminist Critique

2012, Canadian Journal of Women and the Law, Vol. 24, No. 2, pp. 207-239.

North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute.  Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation.  However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it.  Even in the absence of formal family mediation, litigating spouses are likely to be subjected to substantial informal pressure to settle from judges and other family justice system workers.  The article argues that the feminist critique might be more relevant to this “settlement mission” than it is to formal family mediation as it is practiced today.

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Book Review: The Best Interests of Children – An Evidence Based Approach, by Paul Millar

2011, Osgoode Hall Law Journal, Vol. 48, No. 3/4, p. 695-702.

If custody and access disputes are a deck of cards, the trump suit is the best interests of the child. When separating parents litigate about how and with whom their child should live, findings about what’s best for the child are meant to sweep away the parents’ interests and rights-claims. This principle is uncontroversial, but applying it is difficult. What parenting arrangements are best for children, and how successful is the legal system in putting these arrangements in place?  Sociologist Paul Millar has responded with this slim volume, the goal of which is to “explain child custody outcomes in Canada in terms of factors that predict legal behaviour and factors that are empirically associated with beneficial outcomes for children.” The empirical data in this book is a powerful and fruitful new source, but unfortunately it is not complemented by a broad or objective account of the secondary research and case law in this field.

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Judicial Settlement-Seeking in Parenting Disputes: Consensus and Controversy

(2012) Conflict Resolution Quarterly, Vol. 29, No. 3, pp. 309-332

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

Online: SSRN, http://ssrn.com/abstract=1687268

Whose Best Interests?

(2010) Osgoode Hall Law Journal, Vol. 48, No. 2, pp. 287-336 (Peer-reviewed).

This article compares the law of custody and access disputes with the procedure used to resolve them. I argue that there is a fundamental contradiction between these two things. The former focuses on the interests of the children involved to the exclusion of all else. The latter, however, is controlled by and designed to protect the rights and interests of the adult parties to the dispute. Despite their doctrinal centrality in custody and access law, children are usually silent and invisible in custody and access procedure. To resolve this contradiction, I propose a focus on the costs and benefits of parenting litigation for the children involved. Too much parenting litigation occurs which has more costs than benefits for them. We should curtail some of these cases, and apply the proportionality principle to others. Finally, these children should have a stronger voice when decisions are being made about their future.

Download Paper from SSRN

Whose Best Interests? from Noel Semple on Vimeo.

A brief video presentation based on this paper.

The Silent Child

(2010) Canadian Family Law Quarterly, Vol. 29, No. 1, pp. 1-25.

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear “children’s evidence,” which comes either directly from the child, or from a neutral professional with child-related expertise. To assess the prevalence of children’s evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children’s evidence. Among the various varieties of children’s evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

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