Last May, the B.C. legislature approved Bill 21, the Legal Professions Act, which the government said is aimed at modernizing the regulation of legal professions and increasing access to justice. It puts lawyers, notaries and paralegals under a single government regulator. While the new law has taken effect, the Law Society of BC quickly opposed it and filed a constitutional challenge. The Federation of Law Societies of Canada joined the criticism.

The law society has argued in court that Bill 21 jeopardizes the public interest, which is served by having lawyers continue working as a separate, independent profession regulated by their peers, not the government. For now, the court has reserved judgment.

The problem with both groups’ argument is that most of the legal assistance Canadians receive is offered by non-lawyers and much of this legal work is essentially unregulated, varying from province to province.

Over the last 25 years, collaborative practice has become common in family law. Courts across the country urge – and order – Canadians to enter alternative dispute resolution (ADR) arrangements involving psychologists, counsellors, social workers, coaches, child specialists and more. Lawyers, paralegals and notaries also often work in ADR roles.

The arrangements promise expertise and nimbleness not possible within the strictures of court. They are supposed to be more affordable, and law societies treat them as necessary.

But the arrangements can be more coercive than collaborative, and they’re not enough to protect vulnerable families in the most dangerous time for family violence – separation – when murder, suicide and murder-suicides occur in predictable and preventable patterns.

B.C. has mused about expanding the “innovation sandbox” of other legal-service providers and experimental service-delivery models, mentioning native court workers, non-lawyer mediators and community advocates.

Bill 21 opens the door to regulating all ADR professionals, which would prevent families from slipping through the cracks between lawyers and all the other professionals who perform family law.

There is no reason why all practitioners in collaborative justice should not be brought under the regulatory umbrella of Bill 21. It would be the most significant way to achieve greater access to justice in family law. It would be a move toward people-centred justice.

Law societies should not be fighting this bill. They should be collaborating on the regulation of other professionals’ shared practices.

$200k in fees and many trips to court

Let me explain using the situation in family law from my vantage point as a non-lawyer who is a social and policy scientist and a board member of the National Self-Represented Litigants Project.

About half of Canadian unions lead to legal separation and divorce. In family-law cases, the proportion of Canadians who resort to representing themselves because they cannot afford or find a lawyer is as high as 80 per cent.

In 2019-20, family-law cases accounted for nearly one-third of all civil cases in Canadian courts: 275,296 active cases. Each of these involved an average of 11 court events.

On average, to obtain a legal separation and divorce, people can expect to pay $200,000 for retainers for legal fees in urban centres and spend two to 10 years in and out of court for matters related to children (where the average number of court appearances balloons to 18 per year).

Families can land back in court

The Supreme Court of Canada has noted the increase in separation agreements occurring outside the courts: “There is a trend in family law away from an adversarial culture of litigation to a culture of negotiation.”

However, these alternatives can leave families without recourse to justice. They can land families back in court to seek to free themselves from contractual obligations to collaborate when what they want to do is separate. And evidence that these practices represent cost savings is non-existent.

Out-of-court adjudication is unsuitable when the risks are too high. Collaborative practice largely ignores the serious risks of harm to families during separation, says Hilary Linton, a family lawyer and parenting co-ordinator practising in Toronto. Warning signs of family violence get overlooked or ignored.

Ontario’s Domestic Violence Death Review Committee warns there has been a failure to ensure that all accepted cases are suitable for out-of-court adjudication.

In a Canadian Forum on Civil Justice survey, nearly two-thirds of the 166 lawyers who responded said they consider collaborative practices fast, efficient and cost-effective, with 68 per cent of respondents agreeing: “Money spent on the court system would be better spent funding other dispute resolution processes.”

But many fewer actually make the choice to practice ADR. Thirty-seven per cent of respondents said they use collaboration always or often compared to those who said they use litigation (54 per cent.) That means unregulated practitioners do more of the work in the ADR system, which is often the only option for middle- and lower-income Canadians.

There is also no assurance that using ADR reduces reliance on the courts. Ontario and B.C. courts of appeal have insinuated that they held no expectation that the appointment of a parenting co-ordinator would diminish the legal conflict between parents.

The rise of parenting co-ordinators

Parenting co-ordinators are one variety of ADR professionals in family law, setting up shop first in B.C. in 2008 and now operating in most provinces. They are private contractors who — by consent or by court order — provide some mix of mediation, counselling and arbitration for a competitive rate during a 24-month contract.

Courts have largely normalized access to parenting co-ordinators. For example, the judge in the Ontario Superior Court in 2019 in J.C.F.S. reasoned: “The parents however need to understand that the … court cannot continue indefinitely to act as their parenting co-ordinator.”

This kind of acknowledgement is at odds with the law societies’ push to keep distance from the non-lawyers in their work sphere.

The B.C. Court of Appeal did ponder in 2014 whether it is right for parenting co-ordinators to sit “outside the judicial umbrella.”

“It is, in the least, unusual that the determination of a private person who is not willingly engaged by a party and who may be described as relatively unregulated, should attract all the protections of a court order,” the court reflected in a 2014 decision.

Understandably, industry associations like the unregulated non-profit BC Parenting Coordinators Roster Society want their practitioners to stay outside the judicial umbrella. Business is booming.

But Canada participates in the OECD campaign for people-centred justice, a movement to revamp our justice system to meet more people’s needs effectively in terms of time, cost and shared values.

It defies comprehension for law societies to refuse to collaborate with the professionals they say are needed to resolve family law matters and protect children.

Any parent knows it is not in a child’s best interests to go outside in the rain without an umbrella.