Debate heating up over allowing paralegals in family court
Debate pits those concerned about access to legal representation against lawyers who argue quality of this would suffer should paralegals supply it.
Jacques GallantPublic feedback on the report by ex-chief justice Annemarie Bonkalo was being accepted until this week.
By Legal Affairs Reporter
Tues., May 23, 2017
Should paralegals be allowed into family court?
It’s one of the most divisive questions swirling through the Ontario legal community this year.
With most litigants now appearing without a lawyer for family cases in the province, a recent family law review by a former Ontario court chief justice recommends paralegals be allowed into family courtrooms on certain matters, including custody and access, simple child support cases, and restraining orders.
The recommendation has pitted many lawyers and judges, including the entire family court bench at the 311 Jarvis St. courthouse, against those who argue paralegals could possibly provide a more affordable alternative for some people who would otherwise simply show up before a judge on their own.
Public feedback on the report by ex-chief justice Annemarie Bonkalo was being accepted until this week, and the Ministry of the Attorney General and the Law Society of Upper Canada, the body that regulates both the legal and paralegal professions, are working on an action plan to be released this fall.
When the Bonkalo review was released in March, Attorney General Yasir Naqvi said, in a statement, that the government is “committed to working with our partners and the federal government to consider changes that will have a real, positive impact of people’s lives, like allowing paralegals to be trained to provide family law services.”
In an effort to mobilize public support around the paralegal recommendations, and out of a concern that the Law Society will push back against them, the National Self-Represented Litigants Project at the University of Windsor has launched a petition directed at the ministry and law society.
“The public ask us all the time, self-reps ask us all the time: why can’t we have a paralegal do our family matter? They can do small claims, immigration, traffic court, why the heck can’t they do family cases?” said project director and law professor Julie Macfarlane.
“The only answer that the bar has ever given, that the Law Society of Upper Canada has ever given, is ‘Trust us, they’re just not good enough.’ I have heard that over and over again.
“But nobody is talking to anybody in the public about (the recommendations), and their attitude is just this ‘trust-us’ stuff. Well, the public doesn’t trust them, because the public can’t afford them.”
More than 800 people have signed the petition since it launched in early May.
“These costs have impacted both family and friends. I would like to increase opportunities for Ontarians to have access to representation,” reads one comment.
“This is important to me because I believe in providing access to justice to people in society who cannot afford the rates of a lawyer,” says another.
A paralegal becomes licensed after completing an approved paralegal program at a college and passing the law society’s paralegal licensing exam. Lawyers typically must complete an undergraduate university degree before then completing a law school degree, followed by two exams at the law society.
As it stands now, paralegals can act in small claims court, on provincial offences (non-criminal), in criminal matters known as summary conviction offences, where the maximum penalty does not exceed six months in prison and/or a $5,000 fine, and before administrative tribunals.
Bonkalo recommends against paralegals working on certain matters such as complex child support cases and matters dealing with property. This means they would continue to be shut out of the Superior Court of Justice.
She recommends against them handling trials, which form a small part of the work in family court.
The Ontario Paralegal Association said its reaction to the Bonkalo review was positive, and that the judge debunked many of the concerns about whether they are equipped to handle more complex cases.
Bonkalo recommends that the law society create a specialized licence for paralegals to provide specific family legal services without the supervision of lawyers.
The judge noted in her report that many lawyers and judges did not really support giving more room to paralegals to operate.
Macfarlane, at the National Self-Represented Litigants Project, said there are members of the legal profession who support the recommendations, but it’s difficult to find any willing to go public.
Both the bar and bench have come out swinging against the recommendations. In a rare move, a sitting judge, Ontario court Justice Marion Cohen, publicly denounced the idea, saying the solution to access to justice has always been a “properly funded, properly resourced legal aid system.” (Bonkalo rejects this notion in her report.)
Cohen told the Star in March that all the judges at the 311 Jarvis St. courthouse are “absolutely, 100 per cent opposed to having paralegals in family court,” while also saying they would accept them into their courtrooms without any apprehension of bias if the Bonkalo recommendations are implemented.
“It’s going to seem like (the litigants) have somebody to represent them, but, because it’s an inadequate form of representation in family law, because it’s not a trained lawyer’s representation, the appearance is not going to be the reality,” she said.
“There is the possibility that the issues will be inflamed and courts will be less able to get information from the clients, and that increases the risks of making the bad decision in a custody case.”
In a response to the review posted to their website, the Family Lawyers Association criticized several paralegal-related recommendations, saying they “are not based on sound and current data about legal service delivery in Ontario. An evidence-based approach should always be adopted over anecdotes and assumptions.”
The association says there’s no evidence that the choice to involve paralegals would be cheaper than using lawyers, or that it would even benefit a sizeable portion of the individuals who appear without a lawyer in family court.
They say the conversation around access to justice should have focused more on examining the roles of everyone in the justice system and on modernizing the delivery of services, as well as increasing legal aid.
“Family law is a complex area of law, with the intersection of many areas such as taxation, estates, trusts, real estate law, contracts, etc. Law school provides its students with training in these areas of law,” says the association’s response.
“Paralegal colleges do not. Permitting paralegals to practise in the area of family law is putting the public at risk.”
This leaves the law society stuck in the middle.
For the past decade, the law regulator has also regulated paralegals, and its benchers (board of directors) consist of both lawyers and paralegals.
It has yet to take a formal position on allowing paralegals into family court.
“There are a lot of recommendations in the Bonkalo report, and we have to review it from a public interest and public protection standpoint, to determine what we think is appropriate and what we think is feasible,” said law society treasurer Paul Schabas, the elected head of the regulator.
“We’re going to consult with the profession, including the self-represented litigants project, including paralegals, including family lawyers, and we’re going to come up with our own view of this in the fall.”