A. Introduction
The creation of effective entry points requires a reimagining of the services to be delivered and the roles of various actors in the justice system. Among them are the need to make information more accessible, increased assistance with “self-help materials”, particularly for those who may need help for reasons of literacy, language, culture or lack of economic resources; alternatives to full-service representation by lawyers and service by legally trained persons other than lawyers; and throughout an appreciation that family disputants may have different responses to, expectations about and capacity to interact with the family justice system based on a range of backgrounds and characteristics; and that they may have problems that are not family legal problems, but that may have led to, exacerbated or prolonged the existence of family legal problems. In this chapter, we make suggestions about how these aspects of the family justice system might be improved. In the next chapter, we discuss and make recommendations about the creation of the multidisciplinary, multifunction (or integrated) centres we have referred to above and for which we believe that these suggestions are a precondition, as well as having merit on their own basis.
B. Changes to Facilitate the Development of the Multidisciplinary, Multifunction Centres
1. Effective Provision of Information
Based on what we have heard through consultations and submissions, although there has been an increase in information and as a number of stakeholders pointed out, there is actually a great deal of information, it is not always easy to access, navigate or understand for many people. We referred in Part One to Birnbaum and Bala’s 2011-2012 study of family litigants’ mixed experiences with the MAG website, for example. Some litigants found the website helpful, while others found it too complicated or difficult to translate from legal language.[338]
The very fact of the volume of information and the number of stakeholders who develop and deliver information speaks to the lack of integration and coordination required to make information easily accessible and seamless to the user.
As the province moves toward greater access to the Internet for residents throughout the province, the web has become a primary tool for most people to find information. In its response to the Interim Report, the Ministry of the Attorney General highlighted the cost of print material that we had recommended be widely distributed to locations where people regularly go and suggested that a less costly alternative to producing and updating brochures might be a colourful sticker or bookmark to promote the availability of web-based materials. In its comments on the Interim Report, the Ministry of the Attorney General also proposed making contact with service providers such as YMCAs, the College of Physicians and Surgeons and community centres and encouraging these organizations to post a link to family law information on their web sites. We agree that these could be effective initial sources of information that people might see at times they are thinking about getting help for their family problems, rather than having to seek it out.
As we said previously, the Law Society of Upper Canada’s portal is a laudable step toward a better integration of certain kinds of information; however, it is not clear at this point whether the portal will function as a central “hub”. As we explain in Part One, the portal is not easily found and tends to focus on particular family problems and the assistance of lawyers. The location of the Mandatory Information Program and the Family Law Information Centres at courthouses (recognizing that the MIP can be accessed online) may be a disincentive for certain users to seek these programs out voluntarily or to find them helpful, depending on how early in the process they are looking for help. Legal Aid Ontario’s Family Law Information Program has many advantages but it is less likely to come to the attention of people if they are not inquiring into availability of legal aid, a later stage in the process than those who are trying to find information to begin the process.
Various sources of information have benefits, but it remains that it is almost if not actually overwhelming for many people looking for help. The proliferation of online information, while again of great benefit to certain groups, is also difficult to access for people lacking literacy, language or computer literacy skills, as well as people in parts of the province where dial-up access is still predominant. Going forward, the benefits of these various sources of information may be heightened and focused by leveraging the talent and expertise of all major stakeholders that develop information through the creation of a partnership or collaboration. The tasks are three: to restructure the sources of information to mesh with each other, taking the best from all the sources (this will reduce it, as well); designing it to flow more readily from the earliest to the later stages of the process; and indicating at various stages where appropriate assistance in understanding and applying it can be obtained.
A partnership or collaboration to develop a “hub” would appropriately include, for example, the Attorney General, Legal Aid Ontario, the Law Society and CLEO. Each of these stakeholders has made clear that they appreciate the importance of family law information and they have expertise to contribute to developing seamless and coordinated legal information in the following ways:
- The Ministry of the Attorney General has the mandate to develop and deliver family law services and has expertise in the rules and forms.
- Legal Aid Ontario has expertise in developing and delivering services to low-income Ontarians. Moreover, the Trebilcock Report underscored the need for Legal Aid Ontario to make itself more salient to middle-class citizens of Ontario.[339] Taking a prominent role in a collaborative effort to improve the dissemination of legal information to all Ontarians is one way to fulfill this need.
- The Law Society’s mandate includes protecting the public, ensuring competence of its members and promoting access to justice. It can provide valuable information for the public about what to expect from legal services providers and can help to fulfill its “access to justice” mandate.
- CLEO has expertise in developing public legal information, as well as the cultural translation of information.[340]
Any collaborative effort to improve the dissemination of legal information (which includes information about both process and substantive law) needs to address cultural and language issues in order to address the diversity of Ontarians. As we referred to previously, organizations such as CLEO and FLEW provide information directed at particular communities or for particular purposes and often in several languages. The response of the Toronto Lawyer’s Association to the Interim Report highlights the need for information in multiple languages:
TLA notes this task [providing legal information] is a more significant one for Toronto than for other areas of the province, because of the size and diversity of its population. Funding to create the on line and pamphlet format of information must be adequate to address the diverse language and cultures in Toronto in order to provide fair access to justice for all of its systems.
Women who are fleeing violent relationships also require specialized information. Indeed, one aspect in which many current sources do respond to need is that they either provide or link to information specifically about domestic violence, whether in different-sex or same-sex relationships. [341] The existing information for survivors of violence should also be available from the hub.
There is limited information available for children who are in the midst of their parents’ separation or divorce. As noted, the public body available to assist children whose parents are separating or divorcing is the Office of the Children’s Lawyer. While the mandate of the OCL to provide client service is limited by the provisions of the Courts of Justice Act, its expertise in dealing with children could contribute to developing age appropriate information for children.
The objective of more accessible and easily understood information is to increase the ability of individuals, at the early stage of their family problems, to make a preliminary decision about whether to address their to the potential issues arising from their family breakdown or what the next step should be. Increasing the availability of information in different languages and formats speaks to the challenges faced by Ontario’s diverse population. Creating an easy path toward the information, with assistance as needed, allows those who have a limited or no ability to pay for the services of a lawyer to be able to have a basic understanding of the issues, enabling an individual to make decisions about next steps. To the extent possible, the involvement of persons with the characteristics of those who need to use the information can make it more likely that it will be effective.
2. Improving Self-Help Tools
Good and accessible information is important regardless of the next step someone with a family dispute takes. The next step many people will take, especially if they cannot afford – or believe they cannot afford – a lawyer, will be to turn to additional materials intended to help people undertake their own resolution of the dispute, that is, self-help materials. Included in these materials are forms that individuals can complete online to file an application with the court or to calculate child support, for example.[342] As with information more generally, however, it may be necessary to provide some form of facilitation for many users of self-help tools. According to Listening to Ontarians, many people want to solve legal problems on their own: one in three respondents among low and middle-class Ontarians said they prefer to resolve their legal needs by themselves with legal advice but not necessarily with the assistance of a legal professional.[343] While studies have identified a number of concerns with the appropriateness of self-help for certain individuals, these same studies may promote the use of self-help materials under the right circumstances for the “right” users.[344] We do need a better understanding of how people use and benefit from self-help materials.
We believe that provided self-help tools and services are one of a range of options available, they can be useful to certain classes of unrepresented litigants, particularly if facilitated (that is, users have access to assistance in understanding or using them). These materials appear to be most effective if they are delivered in coordination with supports such as community based organizations with knowledge or experience with self-help services; trained in-person support workers; and educational and literacy experts.[345]
Given our focus on persons who have not yet entered or will not enter the court system, the assistance provided at the courts will not necessarily help. These unrepresented individuals will require knowledgeable assistance elsewhere. Legal actors such as the Ministry of the Attorney General, Legal Aid Ontario and CLEO all have experience in the development of the tools required for people in family disputes who are still trying to decide how to resolve their dispute.
At present the number of self-help tools and services in Ontario is limited. There are, however, other jurisdictions where self-help services have a longer history and could provide valuable guidance to Ontario. The increasing number of unrepresented litigants gave rise in the United States to programs catering to their needs. California[346] and New York[347] have been recognized as national leaders and innovators in developing and delivering services for those without legal counsel and their programs have been used as models in other jurisdictions. A variety of services and strategies instituted in the United States to help unrepresented people include courthouse concierge desks; self-help websites; partnerships with law libraries; educational materials (e.g., written materials, videos, and PowerPoint presentations); court-based self-help initiatives; partnerships with public libraries and community centers; community education; and mobile self-help centers. Websites are seen as a relatively low-cost and high-impact option that allow resources to be publicly available, regularly updated and adapted for specific regions or groups (e.g., people whose primary language is not English).[348] Selfhelpsupport.org, which is coordinated by the Self Represented Litigation Network (SRLN), has been described by many as a particularly helpful website. It is a clearinghouse of information on self-representation that offers free membership to practitioners assisting unrepresented litigants. The site has an extensive resource library, webinars, and reports from numerous American self-help centers.[349]
Although little empirical information exists about the distinct impacts self-help tools have on their users or the justice system, many believe that they are equipping self-represented people with more and better information, increasing individuals’ preparedness for engagement in the justice system, and increasing the efficiency of the courts. Greater guidance for the unrepresented in California has resulted in reductions in the frequency of unproductive court appearances and increased collegiality, as litigants have a better sense of the court procedures, and an increase in settlements being reached by litigants who used self-help programs. Such litigants were also found to be more likely to obtain “clear [and more easily enforceable] written orders regarding child custody, visitation, and domestic violence.”[350] Self-help centres have been found to raise litigant satisfaction through the provision of information.[351] In California, enthusiasm for the use of these tools has come from self-represented people, court staff and members of the judiciary and the bar.[352] Equipped with better information and able to navigate the justice system more efficiently, litigants are also able to minimize absences from work and other important commitments.
The California Judicial Council’s Task Force on Self-Represented Litigants, created in 2001, stated that the model self-help center is court-based and “staffed and supervised by court attorneys.”[353]. The SRLN also found that self-help centres are most effective not only when they “[a]re located in the courthouse or as near to the courthouse as possible”, but also when they are integrated into the broader community of legal service providers. The SRLN has also noted that supervision by experienced lawyers, the presence of legally trained staff, and the clear definition and communication of staff roles to users and staff have also increased the effectiveness of these centres.[354]
However, the SRLN also acknowledges that many of the materials available in court-based self-help centers “can also be used in flexible and accessible outside environments“, such as community centres or public libraries. The provision of services at non-court affiliated locations is seen as especially important where they address geographical, language and technological literacy barriers to entry points to the justice system. Additional assistance to overcome these barriers may be available at community centers while it may not be offered at court-based self-help sites. Such external locations have been observed to be most effective when they are accessible by a wide variety of people and employ helpful staff or volunteers who have received some legal training on issues affecting the community being served.[355] The California Task Force similarly noted that court-based centers should not be seen as a full answer to problems faced by self-represented litigants because some issues require legal representation. In those cases, it recommends that centres collaborate with legal professionals so that referrals can be made when necessary.[356]
Where resources may be available, before choosing to increase self-help materials rather than allocating resources to other options, it would be helpful to have a better measure of how effective they are, preferably among different communities and/or in different settings. CLEO has funding from the Law Foundation of Ontario for the preliminary stages of a study of the effect of self-help which when completed could be useful in designing self-help materials and determining when facilitated self-help materials are required.[357]
For reasons we discussed in Part One, such as literacy levels, language, disabilities, or low levels of education, many people will require assistance with self-help materials, even for simple cases. The challenge is to find appropriate facilitators who will be able to serve the diverse individuals who will need their help and can do it without cost or at a minimal cost to the client. Below we discuss the value of trusted intermediaries to address this issue as well as perform other functions which could help improve access to the justice system.
3. Enhancing the Role of the “Trusted Intermediary”
In the Interim Report, we discussed the value of “trusted intermediaries.” Trusted intermediaries include
organizations that focus on social services, services to people with disabilities, immigrant settlement, health care, education, advocacy or a particular faith or ethno-cultural group. They also include agencies that serve the public generally such as libraries, community centres, information and referral services, and hotlines.[358]
Trusted intermediaries serve an important role as conduits for the delivery of legal services to their constituents, both in helping disputants deal with certain aspects of their problems and in alerting them to appropriate resources. They can also be an integral element in increasing the effective provision of information and self-help materials.
Community organizations know the needs of their communities and clients and are often experts in outreach. Particularly in urban areas, community agencies may also have staff and volunteers who can help people in their first language. Collaboration with settlement agencies and other organizations has become one of the most important ways for legal services to reach communities of non-official language speakers.[359]
Trusted intermediaries have the potential to be an important linchpin in addressing the barriers that we have identified in accessing the justice system. Because of their ties with the communities they serve, they have a knowledge of and sensitivity to the challenges posed by the diverse needs of their constituents. A good example of an organization that could act as a trusted intermediary is India Rainbow Community Services of Peel, which is a non-profit, charitable, community based organization. It provides “culturally and linguistically appropriate services to the Peel immigrant community [a largely South Asian community], enabling integration and supporting their settlement, social services, health, and educational needs”.[360] Its objective is to provide services to all new immigrants in the Peel region, as well as both help immigrants integrate into mainstream society and inform the mainstream community about “the value system of first generation Canadians”. One of its specific objectives is “to provide family counselling and/or referral services in family crisis situations”. We have referred in Part One to other organizations that provide integrated services in areas other than law that could also serve as intermediaries with respect to entering the family legal system.
The ability of trusted intermediaries to provide assistance in the area of family law is, however, often circumscribed by their lack of training and education. Providing appropriate information and training could give them the ability to play a larger role in helping clients facing family breakdown that would have the advantage not only of addressing challenges such as language or culture, but also a less costly way of providing needed help. Litigants who are better informed, have some understanding of their own case and have some preparation for participating in the legal system benefit the system, as well as themselves. An important initiative, funded by the Law Foundation of Ontario, is currently underway to facilitate this type of training. The “Connecting Communities Consortium” of legal and non-legal organizations such as health centres and settlement organizations is intended to improve the ability of non-legal organizations to provide basic legal information and referrals to their clients.[361] The Consortium, guided by a committee of community and legal workers, advances training projects and is intended to establish a provincial network for community and legal workers “to help share information, research and innovative approaches to providing community legal education and information”.[362] To date the LFO has funded three projects aimed at increasing information about housing rights, consumer rights and workers’ rights respectively for the target groups.[363]
Although the four pillars reform speaks of providing opportunities to identify issues and direct parties to appropriate and proportional services, a comprehensive triaging function of clients is not being performed unless the client is represented by a lawyer. Trusted intermediaries offer great potential to play this role in the system. The benefits of providing training to trusted intermediaries does not replace the necessity of legal advice and assistance; however, such training may help to minimize the time and associated expense of using a lawyer to perform these tasks. In particular, as will be discussed more fully below, in a multi-disciplinary entry point, trusted intermediaries can be the liaison between the client and the provider of legal services and ensure smooth and timely transitions for the client.
4. More Affordable Legal Services
a) Introduction
It is unrealistic to think that everyone with a family problem will have access to a lawyer or will be able to have access to a lawyer through their entire case. Although many proposals for reform focus on increasing state funding for legal services, as one observer noted, in most jurisdictions, increased funding “looks very unlikely to happen, not least because justice (especially civil justice) tends to compete poorly with other demands on the public purse, most notably health, defence, education and transport”.[364] Yet the current model serves increasingly fewer people. As Chief Justice McLachlin observed, although Canada’s justice system is strong, healthy and a model for other countries, “[t]he problem is that it is not accessible for far too many Canadians. In my view, access to justice is the greatest challenge facing the Canadian justice system”.[365] The Chief Justice noted that although Canada ranks at a high level in regard to the rule of law on the Rule of Law Index, “the index ranks Canada 9th out of 12 wealthy Western European and North American countries. The most problematic areas, according to the index, are access to legal counsel and unreasonable delay in civil justice.”[366] The Index assesses 97 countries and makes intra-country comparisons on several indicia. For example, although Canada’s score for “Civil justice is free of improper government influence” is .84, for “People can access and afford civil justice”, it is .64.[367]
Although there are many unrepresented (those who would prefer to be represented) and self-represented (those who choose to represent themselves for reasons other than financial) litigants in the system, the theoretical presumption remains that a full service model provided by a lawyer is the way in which family matters should be addressed. None of the reform efforts we have discussed previously in Part One adequately tackles the lack of affordability of legal services for a large segment of the population.
Addressing the needs of self-represented litigants without a significant infusion of state funding to pay for lawyers requires creativity and a willingness to examine critically the validity of the arguments for or against service delivery models which deviate from the traditional model of full scope representation by a lawyer. In this section, we consider resources currently in existence which may be redeployed to provide people with legal services to help them. Delivering legal services differently may mean that lawyers do not provide full-service delivery or do not provide them through private practice; it may mean alternative billing arrangements or “a limited scope retainer” (also known as “unbundled services”). Delivering services through different people may mean paralegals, if they are given authority to do so, or students, both within prescribed parameters.
We note here that our analysis of options set out below is limited to the consideration of how to create legal services at entry points. This means both legal and strategic advice, assistance either directly or through a trusted intermediary with the preparation of materials and providing advice on negotiated settlements. We are specifically not analyzing the effectiveness of the options described in matters which will require the services of a barrister in court. None of the solutions that we discuss below is meant to replace legal representation before a judge in family courts, an issue that remains open for further consideration.
b) Providing Greater Support for Unbundled Services
As indicated in Part One, the Law Society has recently amended the Rules of Professional Conduct to recognize limited scope retainers as an acceptable form of practice, while acknowledging the difficulties that have been associated with them. Limited scope retainers or “unbundling” are viewed as a reasonable response to the fact that many people facing family difficulties cannot afford the assistance of a lawyer. Samreen Beg and Lorne Sossin have noted that unbundling “creates an important halfway house between the unrepresented and the represented.”[368]
In response to the Interim Report and the recommendations regarding unbundling contained therein, the Law Society of Upper Canada advised that it had completed its review of its Licensing Process Competencies that form the basis for the development of Licensing Process examinations. Knowledge of limited scope retainers will be tested in licensing examinations. The Law Society pointed to LawPRO’s web site as a useful source of information to reduce a lawyer’s exposure to claims in cases of limited scope retainers. It further advised that it is consulting with the Civil and Family Rules Committees with respect to the development of court rules with additional ethical guidance in the Rules of Professional Conduct on limited scope retainers in a litigation setting. It was the Law Society’s view that in light of this activity there is no justification to consider a two-year moratorium on lawyers’ ability when commencing a family law practice to provide limited scope services as we recommended in our Interim Report. The Law Society pointed out,
In the Law Society’s experience with complaints filed against lawyers, there appears to be no difference between more and less experienced lawyers acting on limited scope retainers. With respect to mentoring and advice, the existing Law Society services for members are sufficient to address issues arising from limited scope retainers should lawyers and paralegals seek those member services. As noted above, dialogue with the Courts has begun in order to address issues relevant to limited scope services in advocacy. Finally, LawPRO maintains information about claims related to limited scope retainers that will be helpful in assessing the effectiveness of such retainers.
The Law Society has incorporated Continuing Professional Development about limited legal services in sessions on specific topics, such as Creative Billing and Collecting and the Family Law Summit, as well as other sessions not related to family law particularly. Diana Miles, the Director of Professional Development and Competence at the Law Society, advises that very few of the 7,000 calls to the practice management helpline that the Society receives every year have been about limited scope retainers.[369]
In its response to the LCO’s Interim Report, The Advocates’ Society noted that “unbundling of legal services could have a meaningful impact on assisting parties to reach negotiated or mediated resolutions”, since lawyers could provide independent legal advice on the proposed agreement. The Advocates’ Society supported a discrete independent legal advice process for individuals who reach agreement in mediation but underscored the need for lawyers to be protected in this context against liability issues. The Toronto Lawyers Association in its response expressed the need for further study before determining the appropriate training required before lawyers be permitted to provide limited scope services.
In January 2012 LawPRO Magazine warned of the risks inherent in limited scope retainers and highlighted a case where a lawyer’s actions were found to fall below the standard of care.[370] However, the training contemplated by the Law Society may help to diminish the potential for problems arising out of an increased use of limited scope retainers, particularly in often emotionally charged family cases.
Limited scope services already exist. Not only do some lawyers offer them, but Legal Aid Ontario has been delivering limited scope services for many years. It provides duty counsel for the financially eligible as well as provides the Advice Lawyer in the Family Law Information Centres.[371] As discussed in Part One, LAO is transforming its service delivery model in the area of family law and is experimenting with a variety of models of delivery. For the last several years, LAO has critically examined its modes of service delivery in order to provide the best services to the widest number of people. This work has entailed identifying what services are required by family law clients and determining how to provide them in the most cost-effective manner possible. LAO’s goal is to tailor services such that they are directly proportional, to the greatest degree possible, to the needs of the client.
We believe that the provision of unbundling services may provide assistance to people who face family breakdown and cannot afford a full service lawyer and would also pave the way for the establishment of legal services at family justice entry points, as long as concerns about the vulnerability of clients are taken into account.
c) Extending Affordable Legal Services
One critical issue to be addressed in the creation of legal services at entry points is how these services are to be funded. In the few instances where legal services are offered in a community location, these are usually provided by Legal Aid Ontario and are limited to those who meet its financial eligibility criteria. LAO is currently exploring ways to increase financial eligibility. The purpose of legal aid is to “promote access to justice throughout Ontario for low-income individuals”.[372] Financial eligibility for services is set out in three documents available from LAO.[373] LAO has different eligibility guidelines for the following services: certificates; duty counsel and summary legal advice; community legal clinics; and big case management (BCM) cases.
The last time eligibility was changed for certificates occurred in 1996 when eligibility was reduced by 22 per cent.[374] Statistics Canada’s Low Income Cut Off (LICO) is the most common measure of low-income in Canada.[375] Eligibility for a legal aid certificate is below every Statistics Canada low income threshold. LAO’s certificate financial eligibility has eroded against all major benchmarks. The recent value for money audit of Legal Aid Ontario noted with concern that although it spends more on legal aid support per capita than any other province, it has one of the lowest income eligibility thresholds.[376] “Low-income Ontarian” is a far wider category than the eligibility criteria permit. LAO has identified the following risks of not increasing eligibility:
- Fewer and fewer people will be eligible for legal aid, calling into question the relevance of the program.
- There will be more unrepresented litigants in all courts and tribunals, including family courts.
- There will be more court delays.
- There will be more court-ordered counsel.
- There will be more hardship and less access to justice for poor Ontarians and families[377]
In 2012 LAO convened a Financial Eligibility Study Group to examine ways in which LAO might be able to expand its services. It examined the following issues:
- Client needs and financial eligibility in specific areas of law;
- Funding instruments/potential partners;
- Cross-jurisdictional initiatives; and
- Potential pilot projects[378]
It is clear that without a significant infusion of funds, LAO would not be in a position to expand its traditional service delivery model to encompass a wider socio-economic group. However, one way Legal Aid Ontario could expand its services into the middle class is by acting as a broker for lower cost legal services. There have been attempts both in Ontario and elsewhere to create services for people who do not qualify for legal aid but cannot afford to retain a lawyer. For example, Justicenet provides a gateway to access lawyers at a reduced tariff based on a sliding scale for persons in Ontario with an income under $59,000.00, who do not qualify for legal aid. It also operates in the area of family law.[379] It is, however, not clear how many lawyers actively participate and how many persons find a lawyer. It may be difficult to persuade enough lawyers to represent clients at a lower hourly rate to make a significant contribution to addressing the lack of legal representation.
In 2010, with a budget of $250,000.00, the Law Society of Manitoba launched the Family Law Access Centre, a pilot project to improve access to family law services for the middle class. The Law Society acts as a brokerage house and purchases legal services at a discount from private bar lawyers who are paid below market at rates from $100 an hour for lawyers with fewer than five years at the Bar to $160 for lawyers with more than 10 years. It then makes these services available to those who meet its financial eligibility criteria. The Law Society handles client billing and guarantees payment to participating lawyers. Eligibility depends on financial criteria, ranging from a maximum of $35,000 gross income per annum for one person to $60,000 for a family of six or more persons. [380]
This model has yet to be evaluated but it contains within it many promising elements. The hourly rates are significantly better than legal aid rates. Although they may be lower than market rates, the fact that the Law Society of Manitoba deals with the management and administration of the service, guarantees payment and assumes responsibility for collecting from the client eases the often significant burden of business management on the lawyer.
Arguably Legal Aid Ontario has both the expertise and the infrastructure already in place to act as the broker in the way that the Law Society of Manitoba does. In particular, it has many years’ experience managing relationships with the private bar and also has experience in collecting money from clients who are required to contribute to the cost of their legal services through contribution agreements. This initiative would have to be far larger in Ontario, given the considerably greater population (over 13 million people compared to Manitoba’s some 1.2 million people). LAO is a province wide organization with the responsibility to deliver its services through the entire province. Accordingly, it has a network of connections and resources that may be useful in establishing an initiative such as this one.
With respect to the provision of services by lawyers, we merely point out efforts to create more innovative ways to provide the services for further consideration. For example, Noel Semple argues that liberalizing regulation could permit the offering of legal services by large corporations not owned exclusively by lawyers, as has occurred in the United Kingdom.[381] Semple suggests that “[a] large corporation opening a legal services business might find many family lawyers eager to become employees, and benefit from the attendant division of labour, economies of scale, and work-life balance options. A larger and more satisfied Canadian family law bar would redound to the benefit of consumers.”[382]
Legal insurance is also one way to fund legal services.[383] However, despite the widespread use of legal insurance in Europe, it is not often applicable to family matters or its applicability is limited.[384] In Canada, the CAW has long had a legal insurance program for its members, although it too has had limited applicability to family matters.[385] In Quebec, legal insurance covers family law information, but not litigation.[386] A number of pre-paid legal insurance providers operate in Canada, but offer very limited services in the area of family.[387]
5. Moving Beyond Service Delivery by Lawyers
a) The Contribution of Students: A “Win-Win”
Law students may provide certain legal services through law school legal clinics, as well as when they are employed as summer and articling students.[388] Clinical training is a highly valued component of their education for many law students and at the same time, they are able to assist people needing help in accessing the system. Generally, however, clinics do not provide family law services. As discussed in Part One, Downtown Legal Services is the only student legal aid clinic in Ontario to deliver family law services. Under the supervision of review counsel, the students are able to provide full scope representation. As also explained in greater detail in Part One, Pro Bono Students Canada (PBSC), has delivered family law services since 1997. They could offer not only more of the same services, but other services, such as helping to draft documents in locations other than the court, meeting with women living in shelters and providing them with services other than in the courts, as occurs in New Brunswick.[389]
Given the great need for legal services in family law and the need for future lawyers to be trained, additional initiatives to provide law students with the opportunity to engage in providing limited family law services, with appropriate supervision are worth considering. In this regard, we note that the Law Society of Upper Canada Articling Task Force in its Final Report stated, “One of the goals of the co-op work placement program would be to provide the co-op placements in areas where access to justice needs can also be served,” including “sole and small law firms providing services in areas such as family law”.[390]
We referred in Part One to the JusticeCorps Program in California under which undergraduate (not law) students provide services to self-represented litigants in a court setting. Students provide information to litigants about options and make referrals to services in or outside courts, help litigants complete forms and procedures one-on-one or in group workshops, and observe court proceedings and give information to litigants afterwards. Judges have assessed the students’ participation positively, the students’ participation has enabled the lawyers to focus on complex cases and the students have also been able to communicate with clients in languages other than English.[391]
In Part One, we also discussed the articling positions funded by the Law Foundation of Ontario, Legal Aid Ontario’s hiring of a considerable number of students to help expand its reach to a greater number of people, including in family law, the public interest requirement at Osgoode Hall Law School and Osgoode’s efforts to provide a more coherent experiential learning experience through the creation of an Office of Experiential Learning.
In its response to the LCO’s Interim Report in this project, the Advocates’ Society expressed some concern about the use of students, particularly with respect to their ability to identify and respond to domestic violence. In our view, however, concerns can be addressed by appropriate training, care in selecting their assignments and supervision.[392] Applied to the family law context, student experiential opportunities of various kinds contribute to two mutually reinforcing objectives: they can facilitate the provision of legal help at the early stages of people’s family law dispute, and can bring a distinctive perspective to students’ legal education.
b) A Potential Role for Paralegals in Providing Limited Family Law Services
While licensed paralegals may provide legal services in several areas of law, they are not allowed to provide any kind of family law services independently (and were therefore not part of our discussion of the current system in Part One). They can provide some services under the supervision of a lawyer, but this does not include appearing in court on family matters. In our Interim Report, we recommended that the Law Society of Upper Canada review the scope of practice for paralegals with the objective of identifying those areas of the family legal system to which paralegals can contribute to increase access to justice as well as recommendations regarding training and their role in providing limited scope services. We would modify that view to recognize that it is important to determine whether there are any aspects of family law to which paralegals could make a useful contribution.
Groups representing the interests of lawyers strongly opposed a recommendation to even examine the issue. The Toronto Lawyers Association wrote the following in response to our Interim Report:
The TLA is strongly opposed to recommendations 14, and part of 27, which suggest the Law Society of Upper Canada explore ways in which paralegals can contribute in the family law system, including limited scope retainers and in multidisciplinary and multi function centres. The TLA first voiced its concern, with other professional associations, about paralegals being involved in the practice of family law, before the 2010 Annual General Meeting of the Law Society of Upper Canada, when a group of paralegals brought a motion regarding expanding their scope of practice to family law matters. The motion was withdrawn after strong response from the profession. Our position included the following comments, which we continue to stress in opposition to paralegals entering the practice of family law:
Family law lawyers alone are qualified to steer families and children through the constantly evolving interplay between complex legislation, case law, a unique set of court rules and precedent to arrive at comprehensive family law solutions. Family law has lifelong consequences for families and children. Family lawyers strive to protect the vulnerable members of society especially children and to facilitate overarching solutions. Family law is not the practice of filling out forms. (emphasis in original)
The Law Society of Upper Canada has been regulating paralegals since the passage of the Access to Justice Act in 2006. The then Treasurer reported to Convocation on recent developments in the Law Society’s Legal Needs Analysis in April 2012, after consultation with lawyers and paralegals, saying that respondents “collectively have significant concern in seeing the access to justice issues and gaps identified, through the clarification and/or expansion of the scope of practice of independent paralegals or through an appropriately managed integration into new practice areas”.[393] The Treasurer’s Report stated that there are foundational issues that need to be addressed before “any potential modification of practice”. These issues are the following:
a. competency of legal services providers (both new and experienced practitioners and both lawyers and paralegals);
b. underlying systemic issues in the administration of justice;
c. barriers to access to justice;
d. public awareness with respect to the justice system and service providers; and
e. evolution and maturation of the paralegal profession.[394]
Pursuant to section 63.1 of the Law Society Act, the Law Society was required to complete a review of paralegal regulation after five years.[395] According to its response to our Interim Report,
The Law Society has undertaken this review with the goal of establishing a framework for a broad consultation with paralegals, lawyers, the courts and others concerned with the provision of legal services.[396]
The Law Society presented its report to the Attorney General on June 28, 2012.[397] The Report concluded that “[t]he implementation of the regulation of paralegals in Ontario has been a success, and has provided consumer protection while maintaining access to justice.” It notes that the Law Society is considering whether it would be appropriate to make changes to the scope of practice of paralegals.[398] The next phase of the review commenced with the Attorney General’s appointment of David Morris (neither a lawyer nor a paralegal, as required by the terms of the review) to continue the process.[399] Mr. Morris stated that the five year period should be considered the “introduction” of paralegal regulation, finding that “by any objective measure, the introduction has been an unqualified success”.[400] He noted that preparing family law documents and drafting uncontested divorces were among areas identified by paralegals in connection with a broader scope of practice. However, he was reluctant to recommend broadening the scope of practice in light of concerns expressed to him about “the current paralegal education and training regime and standards of professional conduct”.[401]
Commentators at the 2012 annual conference of L’Association des jurists d’expression française de l’Ontario (AJEFO) which considered the LCO’s Interim Report noted that they had difficulty imagining which parts of a family law claim could be done without knowledge of many other areas of the law, such as pension, tax and property law, among other areas, but that the LSUC regulation of paralegals in other areas is seen as having produced good results in small claims courts matters. They cautioned that if paralegals were to practice in the family law area, they ought to be closely regulated since errors of law are frequent and they should be specialized, that is, they cannot do traffic one day and a separation agreement the next. Indeed, as one commentator said, “amateurs” in family law are often the primary culprits of bad advice.[402]
Lawyer organizations raise a valid concern about the extent to which a person not trained as a lawyer can provide meaningful assistance in the case of family breakdown. Paralegals, however, can and do play a well-developed role in providing access to justice. Currently, they provide representation in small claims court, traffic court, tribunals such as the Landlord and Tenant Board or the Workplace Safety and Insurance Board and they can represent individuals in the Ontario Court of Justice on minor criminal charges.[403] In a number of these areas, they must be familiar with a number of different statutes and regulations to properly represent their clients. Moreover, some of the administrative tribunals that paralegals work in are as complex in their structure and procedural rules as a court. Some of the work they do engages issues which have grave consequences for the welfare of their clients. In landlord and tenant matters, a person’s housing is at stake. In social benefits matters, the success or failure in a matter will make a tangible difference to the quality of life of the claimant. Paralegals also can work closely with lawyers which can reduce the cost to the client.
It would be helpful if lawyers, paralegals, and other stakeholders consider what role paralegals can play, if any, in the family justice system by analyzing the kind of legal services a family law client may require and the qualifications required to deliver those services.[404] There may be many tasks that a lawyer performs in a family law matter that can be competently done by a paralegal with training and experience, either in a stand-alone fashion or in some form of symbiotic relationship with lawyers. Semple proposes that “[t]he scope of paralegal practice should be defined in a way that balances the benefits of competition and innovation against the need to protect consumers”.[405] From the perspective of entry or access points to the system, we cautiously suggest, in light of the concerns expressed by Mr. Morris in his report, that it would be beneficial to consider whether paralegals may be able to make a useful contribution to the public in the early stages of (our “entry points” to) the family legal system, and if so, how.
C. Assessing Identified Improvements against the Benchmarks
We have discussed possible improvements to the provision of information and for the use of self-help materials; an increased role for trusted intermediaries; more limited provision of services by lawyers; and increased access to students and possibly paralegals, legally trained, but not lawyers. Each of these individually and all of them grouped together meet a number of the benchmarks for improving access to the family justice we identified above.
Distributing initial information to locations such as the YW/YMCA, medical offices, supermarkets, malls and libraries, among others, in different languages provides access when people are actually thinking about their family problems in places they frequent. This preliminary information would identify the next incremental steps people could take to obtain more information. A single hub would make it easier for people unfamiliar with the system and the options to find the appropriate information for them. Some detailed print information would assist people without easy internet access or literacy to find what they need to move forward.
Increased access to trusted intermediaries, students and possibly paralegals can help those who have difficulty accessing, reading, understanding or applying the information at early stages. Appropriate trusted intermediaries with relevant training (although not only intermediaries) have or can develop the kind of experience and community knowledge to respond to different literacy levels and other kinds of circumstances that add to the difficulty of understanding and applying legal information.
Properly regulated and implemented, limited retainers provide greater access to lawyers by persons in a family dispute for specific aspects of a problem, such as initial consideration of the problem; however, many people will also need the continuing assistance of someone else to move forward effectively with their problem.
These initial steps should also help people realize whether they want to continue with a legal response to their problem, or whether it is actually a different kind of problem, requiring different assistance. These “helpers” should also begin the process of “triaging” the problem, assuming that the individuals want to continue with the legal process. At this point, existing forms of assistance may come into play. An increase in persons legally trained, but not lawyers, at these early stages will increase access to the system to those who cannot afford a lawyer and would otherwise rely on their own and friends’ and families’ efforts; with proper training, students, paralegals and trusted intermediaries will provide competent service within the parameters established for them, including helping to identify whether the individual needs the assistance of a lawyer.
It is important that students, trusted intermediaries and paralegals have access to other resources that are available to help people address non-legal aspects of their problem, whether financial, related to mental health or others; generally, this will be to provide information about these services and less often, to initiate a connection where necessary.
Enhancement of services provided by non-lawyers, albeit by those who are appropriately trained, will not be without some cost. However, the cost will be considerably less than increasing access to legal aid in a significant way which, however desirable, is not likely to occur in the near future. For the most part, although relying on volunteers (students and to some extent the trusted intermediaries), it is structured to maximize sustainability.
While they would satisfy some benchmarks at least to some extent, as discrete efforts to improve the system, these improvements do not provide the kind of “seamless” process that we believe is required for the system to be most effective. This is why we recommend the multidisciplinary, multifunction centres in Chapter III below.
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