Judge’s report urges Ontario to let paralegals appear in family court
Former Ontario court chief justice admits in her report that the recommendations dealing with paralegals will be controversial.
Mon., March 6, 2017Annemarie Bonkalo is recommends that the Law Society create a specialized licensing program for paralegals to provide specific family legal services. The recommendations come as the family court system is facing a crisis, with a majority of litigants representing themselves due to the high cost of getting a lawyer. (Tim Fraser for the Law Society of Upper Canada)
In what could prove to be a huge shakeup of the family court system in Ontario, the former chief justice of the provincial court is recommending that paralegals be allowed to provide some family law services unsupervised, including appearing in court.
The recommendations from former Ontario court chief justice Annemarie Bonkalo in a report released Monday were hailed by paralegals and condemned by lawyers, leaving the provincial government and the legal regulator to work out how to implement what are clearly divisive ideas.
Bonkalo herself admitted in the report that the recommendations dealing with paralegals will be the most contentious — paralegals are currently barred from appearing in family court.
“There are few subjects that cause more controversy within the family justice community than the provision of legal services by paralegals,” Bonkalo states.
She is recommending that the Law Society of Upper Canada, which regulates both lawyers and paralegals in Ontario, create a specialized licence for paralegals to provide specific family legal services without the supervision of lawyers.
These services would include: custody and access issues, “simple” child support cases, restraining orders and simple divorce cases that don’t involve property. Bonkalo also recommends that paralegals be allowed to represent their family law clients in court, other than at trials.
At the same time, the judge dismissed the idea of more funding for family lawyers through Legal Aid Ontario, although she said it was “proposed repeatedly” throughout consultations for her report.
“Recommendations like expanding legal aid to cover existing gaps are not practicable,” she said. “Moreover, I do not agree that the solution to any crisis in access to legal services lies solely with (legal aid) or the government.”
The report, commissioned by the Ministry of the Attorney General and the law society, comes as the family court system is facing a crisis. According to the province, over 57 per cent of people did not have a lawyer in family court in 2014-15, or about 21,000 people.
Ontario Attorney General Yasir Naqvi said in a statement Monday that the government and the law society will work on an “action plan” to address the recommendations by fall 2017. The government is also seeking public feedback on the recommendations until May 15.
“We are committed to working with our partners and the federal government to consider changes that will have a real, positive impact on people's lives, like allowing paralegals to be trained to provide family law services,” he said.
Stephen Parker, the president of the Ontario Paralegal Association, said his reaction to the recommendations were “very positive,” saying Bonkalo debunked the concerns that family law would be too complex for paralegals.
The chair of the Family Lawyers Association disagreed with the judge’s view of the system when it comes to paralegals, especially the recommendation to allow them to practice unsupervised.
“We felt that the issues (in family court) were complex and that they required someone who had more experience and more training in that area, and we felt that a family lawyer is in a position to do that,” said Katharina Janczaruk.
“Looking at the report generally, I’m not satisfied with the education requirements set out in there. I don’t think they’re sufficient. I’m concerned we’d have someone with less expertise, for instance representing someone very vulnerable seeking a restraining order or custody and access.
“These are important issues and I think they should be afforded the importance that’s due.”
Janczaruk also questioned whether a paralegal would indeed be a cheaper option, saying there was no evidence of that in the report. While paralegals may still not be affordable to everyone, Bonkalo said they would be a viable option for some.
“Paralegals would provide a greater choice of legal service providers for those in the middle class,” Bonkalo said.
The law society should also conduct a review, five years after the first paralegal family law licences are issued, to study the impact of paralegals in family court, she said.
The executive director of the Federation of Ontario Law Associations said the organization was disappointed there weren’t more recommendations addressing some systemic issues that could have a greater impact, including more emphasis on mediation, for example.
“We think this is going to result in fewer lawyers doing family law. So how does having fewer lawyers increase access to justice?” said Michael Ras.
Other recommendations include more education for the public and lawyers on the benefits of unbundled services — meaning offering certain services to clients for a fee, while the client still does the bulk of the work.
The recommendation that paralegals would need a specialized licence to appear in family court seemed ironic to the Criminal Lawyers' Association, which pointed out that paralegals practicing in criminal law do not need such a licence, yet the issues involved are just as serious, if not more so.
“It's almost like a tragic irony,” said Michael Lacy, vice-president of the CLA, “that whereas if we're going to expand the services to family law proceedings we need to have specialized paralegals, yet we have nonspecialized paralegals doing criminal work where liberty interests are the most acute.”
He reiterated the CLA's long-standing position that the justice system is underfunded, particularly Legal Aid Ontario.
“Our experience in the criminal justice system is that people who can't afford lawyers can't afford paralegals either,” he said.