LSO proposal to allow paralegals to provide family law services garners mixed reaction

Law360 Canada (August 4, 2020, 9:49 AM EDT) -- The Law Society of Ontario (LSO)’s proposal to allow paralegals a limited licence to deal with family law issues is receiving a mixed reaction from practitioners in the field, with some saying it offers the potential to help address an access to justice crisis but others arguing it could create even more backlog in the system.

The genesis for the LSO’s proposed family legal service provider (FLSP) licence has its origins in the decision to appoint Ontario Court Chief Justice Annemarie Bonkalo to lead a review of unmet legal need in the family justice system. Her report, which was released at the end of 2016, found approximately 57 per cent of Ontarians did not have legal representation in 2014-2015. As a result, the report made 21 recommendations, including one which said the law society create a specialized licence for paralegals to provide specified legal services in family law.

A family law working group was subsequently established by the LSO to develop a framework for the FLSP licence, which is now open for public consultation. Under the model, paralegals would undertake a minimum six- to eight-month training program and then be able to offer legal advice, draft legal documents and be able to appear before a court or an adjudicative body. The licensee would be able to help out with divorces, parenting orders and decision making, child and spousal support and change of name applications, but would not be authorized to deal with matters involving child protection, adoptions, declarations of parentage and matters involving fertility law, and they would not be allowed to take on appeals.

LSO treasurer Teresa Donnelly said one of the roles of the law society is to facilitate access to justice.

“There are so many complex reasons why people are unrepresented in family court, but one of the most consistently cited reasons was the inability to afford someone,” she said. “For me as treasurer, I think we have to make a decision to try and address unmet legal needs and help the people of Ontario as much as we can for those who can’t afford legal services in family law.”

Pamela Cross, legal director of Luke’s Place Support and Resource Centre in Oshawa, Ont., expressed “cautious support” for the FLSP proposal. She said she still saw a number of pitfalls, but noted there are a lot of steps and tasks which are undertaken in a family court proceeding that don’t necessarily require somebody who has been through a three-year law degree.

“I think some of the more administrative responsibilities associated with a family law case can be handled by people other than lawyers, and as a result possibly can result in lower fees to the client,” she said. “I certainly think a paralegal could be very helpful with some of the paperwork and documentation that has to be prepared in any family law case, and there may be some appearances that could be handled by a paralegal, especially early on in a proceeding, and that would be a starting point for me for a discussion about responsibilities.”

One of Cross’ major sources of concern was the complexities of cases which contain issues of family violence, and to her that is an area she didn’t automatically think a paralegal would be the best choice. And she said expanding the role of paralegals was not necessarily going to solve the much bigger access to justice issue.

“Paralegals will still charge fees, and there’s no indication whether legal aid will send financial support to people who use a paralegal rather than a family lawyer. So, if all we are going to do is put paralegals into family court and people have to pay them privately, we wont have cracked the problem of access to justice for folks who don’t have the money to pay for legal representation at all,” she said. “But if we can get our head around that and find a way to deal with it, then I do think there are some roles that a paralegal can do as well as, or perhaps even better, than a lawyer.

But Cross’ cautious optimism is not universally shared by family law practitioners in Ontario. Gary Joseph of MacDonald & Partners LLP said he didn’t feel a six- to eight-month training course is enough to qualify people to practise family law, noting family lawyers need to have a basic law of bankruptcy, corporate law, tax, estates and property law, among other areas, and even things such as support applications can become tremendously complex.

I have a case going now in provincial court, a self-employed client who makes about $130,000 a year from his business, and it is tremendously complicated to parse out what is and what isn’t running through the company, and the tax issues that go along with that,” he said. “You’re not going to be able to teach these people in six to eight months about those cases.”

Joseph said it is “nonsense” to say adoption of the proposed model would result in more access to justice and it would be a “disaster for the court system,” in particular given the fact that the current model proposes people with an FLSP licence do not need to work under the supervision of a lawyer.

“There is a tremendous political element to this as well. The law society and the government are going to be able to say we have increased access to justice in allowing paralegals into the system,” he said. “But there is so much that you can do, like increased legal aid for family law and more duty counsel in court, and it is shocking that we still do not have a province-wide Unified Family Court. I feel for people who have invested 10 years of training to become skilled family lawyers, and they are going to be replaced by people who have six- to eight-months of training who are undercutting them — it is just wrong, and what will happen is the messes will have to be cleaned up by the lawyers.”

Nicholas Bala, a professor at Queen’s University who teaches family law, said no other jurisdiction in the world has a system like the one the LSO is proposing.

“My biggest concern about this is they would have paralegals potentially dealing with cases involving the future of children which can be extremely volatile and complex and have profound effects on the children,” he said. “I would certainly also be concerned about a paralegal being involved in a case where there are continuous domestic violence concerns, which involves a very serious set of social problems.”

Family law cases are often extremely complex and it is very hard to tell at the outset how everything is going to come together, said Bala. He also echoed Joseph’s concerns about the fact there would be no supervision by a lawyer under the plan as proposed.

“One of the things I tell people is you don’t really know someone until you divorce them. It is not like a landlord coming into a paralegal saying they want to get rid of a tenant,” he said. “Issues could evolve in a very simple way or in a very complex way, and it could drag on for years or be resolved in a few months. There could be tax implications, and the other party may have assets you are not aware of — there are all kinds of potential concerns and complexities that you don’t know at the beginning.”

The LSO’s consultation is going on until Nov. 30. Donnelly said the law society “wants to hear from everybody — so tell us what you think.”

“We know we are going to get constructive feedback, and this is going to be a meaningful consultation,” she said. “We recognize that there was unmet legal need in family law, and as I said part of our role as a law society is facilitating access to justice. We need to deal with this.”

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