Law Times

Law Times • aPril 13, 2015 Page 17 www.lawtimesnews.com family lawyer touts aBS despite resistance from many colleagues By miChaeL mcKiernan For Law Times embers of the fam- ily law bar should open their minds to the prospect of al- ternative business structures in Ontario, says an Ottawa lawyer championing looser rules for law firm ownership. Julie Audet, one of the found- ers of the boutique firm Family Law in a Box, sat on the County of Carleton Law Association's alternative business structures working group as it prepared a submission to the Law Society of Upper Canada on proposals to allow non-lawyer ownership of law firms. She found a high level of skepticism towards the idea among her fellow family lawyers. "I thought there would be a whole lot of support for ABS from the family bar but I've been quite disappointed by the response," says Audet. "I think that maybe it's because family lawyers who do traditional work don't think outside the box enough. I raise my hat to them because it's a hard industry to work in, but the focus is on legal expertise and legal work when I think most people agree that is not what clients need most." Katharina Janczaruk, who chairs the Family Lawyers Asso- ciation, says while the group has yet to take a formal position, her own views are in line with those of the Criminal Lawyers' As- sociation and the Ontario Trial Lawyers Association, two major opponents of alternative business structures. Janczaruk says she has yet to see any evidence that new own- ership rules would do anything to tackle access to justice in the family law sector. "Just having ser- vices centralized or large entities involved doesn't necessarily lead to efficiencies," she says. "Access to justice is an issue that is centred around properly funded legal aid, and I don't see how this enhances it. If anything, it suggests a lesser type of service." In its submission to the LSUC's working group on the issue, the Ontario Bar Association report- ed concerns from members that alternative business structures could precipitate the extinction of lawyers working in areas such as criminal and family law due to the inability to commoditize their legal services. "When you talk about something like questions of child custody and access, they're not the sorts of things that can be easily shoehorned into some kind of form-filling exercise," says Quinn Ross, a Goderich, Ont., lawyer who chaired the OBA's working group on alternative business structures. Ross says family lawyers who provided feedback to the working group also expressed a fear that looser ownership rules for law firms could lead to increased in- volvement by paralegals and other non-lawyers in the provision of family law services. "The conversation has to start about what requirements there will be for individuals involved in the delivery of services in an area as sophisticated as family law," says Ross. "It's an incredibly challenging area of law to practise in because you need to be able to keep abreast of changes that are happening extremely quickly." Ross says the emphasis on alternative business structures as a solution to access to justice could actually damage efforts to improve the affordability of legal services. "There is some danger in it being seen as a panacea because it could take some of the pressure off the existing problems in fam- ily law where there are still a lot of issues," he says. Janczaruk says she would rather see family lawyers concen- trating their efforts on pushing for a reformed family justice sys- tem. "I just don't see why so much time and attention is going into this when we could be focusing on court resources, legal aid fund- ing, and other more immediate concerns," she says. But that "is never going to hap- pen," according to Audet, who suspects the resistance to alterna- tive business structures may be less about "protecting the public and more about protecting the profession." "We've been talking about a reformed system for 20 years and nothing has happened," she adds. In the absence of wholesale change to family justice in On- tario, Audet says the current proposals offer op- portunities to im- prove the family law experience for the general public. Under looser ownership rules, Audet plans to of- fer clients a series of related services by partnering with professionals in ar- eas including finan- cial advice, psychotherapy, and social work. "As a lawyer, I pick up the piec- es for clients and try to help them emotionally, but it's not some- thing I'm trained to do," she says. "They might be better off speaking with a therapist as the main person who helps them through this and then the lawyer can come in when they are needed. Right now, a client has to retain three or four different profes- sionals from three or four different places and there's no integration." Judging by the response to the LSUC's proposals, Audet believes the weight of opinion in the legal profession may be against her. However, she's hopeful the law society will remain open to more incremental change to the owner- ship rules in the event benchers end up rejecting alternative busi- ness structures. LT BRIEF: FAMILY LAW Childview_LT_Nov4_13.indd 1 13-10-28 4:47 PM enforcement. "Do you want to tie your hands if someone breaches the agreement?" asks Rose. "In each mediation and each mediation agreement, there is a balancing act between confidentiality and the ability to legally en- force contracts." When it comes to Sattva, Torys LLP as- sociate Myriam Seers confirms the decision appears to make appeals in cases of contrac- tual interpretation more difficult. "In reading the case, the court said issues of interpretation of contracts will always be a question of mixed fact and law. Most con- tractual decisions turn on an issue of inter- pretation of the contract. In British Colum- bia, where the case originates, you can only appeal if it is a matter of pure law and this appears to preclude appeals." But Seers notes the legislative landscape is different in Ontario. "Ontario has a statute that does allow an appeal to the Ontario Su- perior Court on a question of mixed fact and law but only where the parties have agreed to it. If the arbitration agreement is subject to the law in Ontario, absent a clear agreement, Sat- tva will apply. You need to say expressly that the arbitration clause allows an appeal of a question of mixed fact and law." Seers isn't sure if lawyers will welcome the decision. She notes that making domestic awards less subject to appeal brings them more closely in line with international arbitration rules that rarely have rights of appeal. "There is significantly no right of appeal to any court unless there is an error so grave that it rises to the level that challenges par- tiality, fraud or exceeding jurisdiction. They are allowed to get it wrong," she says. In Seers' experience, that may not be appealing to many parties. "Some people are interested in finality, but not every party wants that. In my experience, many parties are happy to have rights of ap- peal. They want to craft the process in first instance and speed up the process but not put themselves entirely in the hands of a third party. In our practice, we are often faced with hesitation if the process is final." Despite that fact, Seers welcomes the Su- preme Court's decision. "Clarity is always a good thing. There's been uncertainty for a number of years whether ap- peals on contractual interpretation are char- acterized as law and fact," she says. "Plaintiffs can now make their own decision agreeing to a right of appeal without confusion and it gives more certainty in drafting. Any time the Su- preme Court clarifies issues that have caused confusion, it's extremely helpful." LT Continued from page 16 supreme court's contract law decision welcomed M Julie Audet

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