The Ontario family court system faces the possibility of a profound change after former Ontario Court Chief Justice Annemarie Bonkalo released a report recommending that the Law Society of Upper Canada implement specialized licences for paralegals. Such licenses would permit paralegals to perform more of the duties of a family lawyer, without a lawyer’s supervision.

The changes outline that paralegals would be limited to providing legal services for custody; access; simple child support cases; restraining orders; enforcement; and simple and joint divorces without property. They would be excluded from providing services for Hague Convention applications; child protection; property; spousal support; complex child support; and relocation. This limited scope provides significant challenges. Under this outline, it seems that a paralegal would only be able to act for their client under certain circumstances, or for certain issues. Yet, how would a paralegal determine that a case is truly simple, or has only issues which a paralegal is permitted to address? What if more issues arose in the process of a case? Would a client be forced to incur additional retainer expenses of new representation?

Further, there is no clear justification for why paralegals can act for some issues and not for others. If advocates state that paralegals can deal with enforcement, why are they not capable of resolving spousal support? As one justice at 311 Jarvis asked: ‘Paralegals can’t assist on the question of who gets the Rolex, but they can assist on who gets the kids?’

What is the benefit of paralegals expanding their services? Approximately 60-70% of individuals in the family court system are self-represented. This slows down the justice system as court staff need to spend additional time assisting self-represented litigants. Officials do not want to expand Legal Aid Ontario because their resources are already strained and this would only cost more in taxpayer dollars.

Studies show that family law litigants are not mostly self-represented because they do not wish to have a lawyer, but because 46% of them cannot afford one and they fail to qualify for legal aid. According to a Statistics Canada report from 2015, the low annual income cut-off, before tax, for a single person living in a metropolitan area was placed at $24,328.00, which is more than twice the figure that Legal Aid Ontario uses publicly. Expanding the abilities of paralegals is intended to give family law litigants an affordable option for legal representation that will not cost taxpayers.

However, paralegals may not necessarily be the solution. In criminal law, paralegals are afforded expanded abilities, such as appearing in court with their clients. As Michael Lacy, Vice-President of the Criminal Lawyers’ Association stated: “[o]ur experience in the criminal justice system is that people who can’t afford lawyers can’t afford paralegals either.” Changing the hourly rate of a representative will change very little for many low-income Ontarians.

Further, studies show that 54% of individuals choose to be self-represented for non-financial reasons. Alberta has a higher rate of self-represented litigants than Ontario, yet has an essentially open market for paralegals and non-lawyers.

It seems the main reasoning of this change is to solve the dilemma of self-representation. Otherwise, there is little justification. There are clear differences in education and qualification between lawyers and paralegals for obvious reasons. Eliminating differences in licensing would undermine the training required to become a lawyer. It would qualify a paralegal’s training for appearing in court, giving legal advice, reading, and interpreting the law, etc., all of which paralegals are not prepared to do. This holds serious repercussions for individuals employing paralegals to do the work of a lawyer. Family law is not static, nor is it ever simple. Situations are personal and ever-changing, and lawyers are better equipped to navigate these changes.

Furthermore, family law intersects with many other areas of law, such as taxation, estates, trusts, real estate law, contracts, and so forth. Paralegals are not versed in these other areas of law as a lawyer is.

So, if expanding the abilities of paralegals will not solve the issue of self-representation and legal fees, what will? There is a new proposed program called Day of Court On-Site Private Counsel. This program would connect experienced lawyers with self-represented individuals for a single court appearance. This is arranged through limited scope retainers that restrict the lawyer’s services to the single court appearance. This way, self-represented individuals can receive legal advice and representation for the few hours they need it the most without needing to pay out massive retainers. Perhaps, this could be a more feasible option.

Nevertheless, the best solution is for paralegals to continue under the supervision of a lawyer. If and when they receive the necessary training, they should be permitted to expand their services. This way, a lawyer could review and supervise a paralegal’s work and ensure quality. This would result in the same quality of work, while being done at a lower rate. Paralegals would do the bulk of the work at a lower rate, while lawyers would only spend a few hours reviewing, at a typically higher rate.

Jean-Pierre Ung

Jean-Pierre is a Family Law Lawyer in Markham, Ontario with over 17 years of experience.  He works to minimize the work of lawyers where possible by employing a strong support staff to reduce legal fees. His office is settlement oriented to save his clients unnecessary legal fees, animosity, risks, and delay which may arise when a matter goes to court. To learn more about Jean-Pierre click https://www.thedivorceangels.com/vendor/jean-pierre-ung/.

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