Ontario became the first province to introduce a license for paralegals in 2007, and despite other provinces considering a similar move, it remains the only province to regulate the profession. Currently, paralegals are licensed, along with lawyers, by the Law Society of Ontario (LSO) and are permitted to represent clients in small claims court, provincial offences and Criminal Code summary conviction matters, matters before provincial and federal tribunals, and certain matters pertaining to no-fault motor vehicle insurance.

Both the LSO and external academics and experts have touted the success of paralegal regulation in Ontario thus far, and many are advocating for regulatory frameworks to be implemented in other Canadian provinces. Nonetheless, with 15 years passed since the introduction of regulation for paralegals, Ontario still faces a troubling access to justice problem, and this is especially being felt in the area of family law, where paralegals are not currently permitted to provide services.

According to the Family Legal Services Review Report (the “Bonkalo Report”) commissioned by the Attorney General of Ontario, 57% of Ontarians did not have legal representation in family court in 2014/15, and CBC reported this figure was closer to 80% in Toronto. The report noted that self-represented litigants do not fare as well as people who have legal counsel. In an analysis of cases in Toronto where one side was represented by counsel and the other side was unrepresented, unrepresented litigants had 124 wins and 720 losses. For applications, they had nine wins and 56 losses. And for trials, they had 30 wins and 84 losses.

Following a key recommendation of the Bonkalo Report, the LSO is pursuing the implementation of a specialized license for paralegals that would allow them to provide specified services in family law as a way to improve access to justice for Ontarians. But many are questioning whether this is an effective approach, or if doing so could possibly endanger the public. In this article, we’ll take a deeper look into this important issue.

Why is the LSO introducing a new license for paralegals to provide family law services?

The idea to allow paralegals to offer some services in family law, either through an expanded scope of practice or specialized license, as a potential solution for increasing Ontarians’ access to justice has existed for quite some time. In 2012, independent reviewer David Morris, who was charged with completing the Five-Year Review of Paralegal Regulation in Ontario, recommended in his final report that the Law Society should actively pursue expanding paralegals’ scope of practice to facilitate enhanced access to justice, including the consideration of sub-classes of paralegal licenses that fall outside their existing scope, but that any broadening must be linked to enhanced paralegal education, training, and professional conduct. In 2013, the idea of expanding paralegals’ scope of practice specifically into matters of family law was explored in detail in a report conducted by the Law Commission of Ontario, entitled Increasing Access to Family Justice Through Comprehensive Entry Points and lnclusivity.

In 2016, the Bonkalo Report provided the impetus for action. In her review, Justice Annemarie Bonkalo was tasked with investigating the provision of family legal services by persons other than lawyers. While she acknowledged that there are several factors leading to the high number of self-represented litigants, Bonkalo noted in her final report that the most consistently cited reason is the inability of people to afford to retain, or continue to retain, legal counsel. Recognizing that there is a significant number of people who make too much money to qualify for the province’s legal aid system, but not enough money to afford the typical fees charged by a lawyer, she stressed that action from all key stakeholders is required. However, while she said that it is important to build on existing services and successful programs, she asserted that “it is also time to consider other options, including options to expand the legal marketplace and offer clients a range of affordable services.”

In addition to encouraging lawyers to continue and expand the usage of unbundled legal services and coaching services, which would help address affordability concerns, Bonkalo recommended that paralegals should be able to provide some family legal services without the supervision of lawyers, saying that “paralegals would provide a greater choice of legal service providers for those in the middle class.” Her specific recommendation was for the Law Society to create a specialized license for paralegals that would permit them 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.”

How will the family law license for paralegals work?

Following the release of the Bonkalo Report, the LSO began pursuing the development of a specialized Family Legal Services Provider (FLSP) license in 2018. In 2020, the LSO’s Family Law Working Group (FLWG) outlined a proposed model licensing framework for how the new license would work in a consultation paper. While the group acknowledged that other non-lawyer legal service providers (such as law clerks) could be important resources for meeting legal needs, they stated that paralegals were the primary intended candidates for the license.

In terms of a scope of practice, licensees would be authorized to offer legal advice, draft legal documents, represent clients in court or before an adjudicative body, and negotiate legal interests or rights in specified general areas of family law, including divorces, custody matters, child and spousal support, and change of name applications.

However, there are several limitations and exclusions listed. Regarding property, the licensee may not act where there is more than one home, where there are equitable or trust claims, or claims for unequal division of property. Also, for a licensee to provide services for separation agreements, paternity agreements, and family arbitration agreements, the client must agree to obtain independent legal advice from a lawyer. Out-of-scope activities include matters of income determination, third-party experts or valuators, relocation/mobility matters, and cohabitation agreements and marriage contracts. Licensees would also not be able to act in any circumstances where the client is under the age of 18 or is mentally uncapable, in child protection matters, adoptions, or declarations of parentage, and in matters involving reproductive/fertility law issues (among other specified circumstances).

To develop the 209 core competencies identified by the FLWG as essential to safely and effectively performing the activities that fall under the FLSP license scope, licensees would need to complete a specialized training program and meet other licensing requirements. The FLWG estimates that the training program will take a minimum of six to eight months to complete on a full-time basis or one year on a part-time basis. Other qualifying components of the licensing process will include pre-requisite experience as a paralegal and/or a field placement in family law, a licensing examination, mandatory professional liability insurance, and continuing professional development.

Critics say FLSP license is against the public’s best interest, won’t serve legal needs of vulnerable people

Not everyone believes that the proposed FLSP license would be an effective and appropriate solution for addressing the access to justice problem. In a joint statement issued in February 2022, the Advocates’ Society, the Federation of Ontario Law Associations, the Toronto Lawyers Association, and the Family Lawyers Association came out against the LSO’s proposal, saying that the new license is not in the public interest and will not serve the critical legal needs of vulnerable members of the community.

In the statement, they note that family law matters are unpredictable and complex with possibly grave consequences for the families and individuals involved, and not only do they often overlap with other extremely complicated areas of law like tax and bankruptcy, but matters can also be further complicated by intersecting issues such as domestic abuse, substance abuse, mental health challenges, and immigration sponsorship problems. As a result, they reject the idea that paralegals could develop the expertise needed to competently protect the interests of clients in the short period of time called for in the proposed training program. Furthermore, they worry that the proposal could create a “two-tier system” where lower-income families are represented by professionals with less training and expertise compared to those with higher incomes.

The authoring associations also take issue with the notion that the FLSP license will increase Ontarians’ access to justice, stating that there are many family lawyers who offer services at hourly rates comparable to, or lower than, the rates paralegals currently charge, and that the “majority” of family lawyers offer alternative billing options that paralegals often do, including limited scope, unbundled, legal coaching, flat fee, and sliding scale services.

Generally, many other critics of the proposed FLSP license argue that because the LSO doesn’t regulate the fees charged by lawyers or paralegals, there is no way to say with certainty that family law services offered by paralegals would be at a lower cost. As Toronto Lawyers Association director and family law committee chair Sarah Boulby explained to Law Times, allowing paralegals to work on high-stakes family law cases could substantially raise the cost of the insurance they need to obtain to practice. It is possible that these and other direct and indirect costs of FLSP licensing could be passed on to clients in the form of higher fees.

Wider innovation and investments are needed to address access to justice

The FLSP license can’t be – nor is it intended to be – a “magic bullet” solution for Ontario’s access to justice problem, and both advocates and opponents agree that other key investments and innovations beyond specifying who is allowed to provide legal services are needed to address the issue. For one, Legal Aid Ontario (LAO), which provides legal assistance for low-income Ontarians, remains woefully underfunded and is therefore unable to help the huge number of people who can’t afford to pay for legal services but make more than the annual income threshold to qualify for legal aid services, which is currently set at $18,795 for a single person and $45,289 for a family of four. There are also initiatives and programs aimed at facilitating access to justice, such as those that help self-represented litigants navigate the court process, like the National Self-Represented Litigants Project; programs that help people access certain family law services, like the Ontario Family Law Limited Scope Services Project; as well as family justice services offered by the Government of Ontario for families experiencing separation or divorce.

But while these efforts could, and should, be bolstered, increased government spending on legal aid appears unlikely anytime soon, given that the current provincial government slashed funding to LAO by 30% in 2019 and that government was recently re-elected (LAO, for its part, does not expect government funding to increase over the next few years).

What’s next for the FLSP license proposal?

The FLSP license was scheduled for a vote at the LSO’s Convocation on Feb. 24, but it was pulled from the agenda in the weeks leading up to the meeting, causing an uproar from paralegals who have been advocating for the license for several years. The LSO responded that it has not abandoned the initiative but needs more time to consider input from various stakeholders across the justice sector, as the FLSP license proposal was just recently released to the public in January.

Experts hope that despite the complexity of the issue, the LSO will reach an effective solution that properly balances regulatory obligation to protect the public with the need for more flexible legal services options that can enhance access to justice for Ontarians. Lisa Trabucco, assistant professor at the University of Windsor, told Law Times that it’s crucial for the LSO to properly study the FLSP license proposal and not make a rash decision. “Family lawyers say one thing, and paralegals say other things, and the right answer is not simple,” she said. “It’s not as simple as saying it must be A, not B.”