A new type of paralegal will not improve access to justice: TLA

By Paul Russell, LegalMatters Staff • Creating a new level of legal professionals in Ontario will not achieve the goal of improving access to justice in the area of family law, says Sarah Boulby, chair of the Family and Estates Committee of the Toronto Lawyers Association.

That committee helped pen a response to a consultation paper from a working group of the Access to Justice Committee of the Law Society of Ontario (LSO), recommending the creation of a new legal profession called Family Law Service Providers (FLSPs).

According to the LSO, the paper followed a 2016 report from Justice Annemarie E. Bonkalo, who led the Family Legal Services Review. The report looked at whether the family justice system could be improved by expanding the delivery of legal services to providers other than lawyers.

It found that 57 per cent of Ontarians did not have legal representation in family court in 2016 and that self-represented litigants do not fare as well as those represented by counsel. In addition, “the impact of self-representation can be felt not only by the parties, but by the overburdened court system as well,” the report stated.

‘Family law is incredibly complex’

While improving access to justice is critically important to the TLA, Boulby tells LegalMattersCanada.ca that allowing paralegals to take on more family law responsibilities will not achieve that goal.

“Family law disputes, divorces, etc., are the most common reason people see a lawyer,” she says. “Yet family law is incredibly complex. Practitioners must understand not only the family law legislation but also rules involving contracts, tax law, corporate law and bankruptcy law.

“And sadly, they need awareness of criminal law, because of the ever-present factor of domestic violence,” she adds.

The working group’s consultation paper proposes that FLSPs could offer advice and represent clients in court cases involving divorces, parenting orders, child support, separation agreements and division of property matters, among other responsibilities.

Boulby questions how FLSPs – paralegals who have completed a two-year college course followed by six to eight months of courses in family law ­– can competently represent clients in these complex matters.

“Members of the public will assume these people are suitably trained since they are licensed by the law society, but there is no way they can learn how to be an effective family law practitioner without the years of training lawyers are required to do,” she says.

FLSPs lack formal legal training

In a letter to the LSO, TLA president Brett Harrison states that if it is “possible to reach competency in the diverse areas of knowledge FLSPs must learn after a two-year college program and 6 to 8 months of study, then it would not be necessary for lawyers to obtain a three-year university degree in law followed by articling or the Law Practice Program to achieve competence on the same material.

“In reality, it is not possible to learn these areas and to become competent based on the limited education program proposed in the consultation paper … it is not possible for individuals educated in this cursory fashion to understand how to learn and apply the law as it evolves and changes.”

Legal services may not be cheaper

“The key issue is protection of the public, which is the fundamental role of our law society as a regulator,” says Boulby. “The law society must ensure that those offering legal services in the province are competent to deliver it.”

Another major concern she has with the proposal is that it is built on the assumption that FLSPs would charge less than lawyers, without any real evidence to support that claim.

“The TLA has 400 family lawyers as members, and we don’t think this work can be done less expensively,” she says, explaining any established law practice has to pay rent,  salaries and insurance, as well as buy specialized family law software and IT systems.

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“Ontario paralegals who work in other areas of the law charge similar hourly rates to those of junior lawyers at family law firms,” she says. “This proposal’s failure to build a business case to show how FLSPs will improve access to justice for low-income residents is rather shocking.”

Washington State and Utah both tried to institute a similar category of legal professional. The Washington State program failed. The Utah program has only a handful of paralegals so far. She notes that in Washington State the new breed of legal professionals charged approximately C$200 an hour.

Better ways to improve access

Harrison’s letter outlines 10 recommendations on how to improve access to justice. They are:

• a greater emphasis on digitalization and remote hearings;
• expansion of the Unified Family Court across Ontario;
• expansion of Family Justice Centre Ontario, run by volunteer private lawyers and students;
• expansion of Legal Aid Ontario services for family law;
• a levy on all lawyer licensees to fund family law services for those whose incomes disqualify them from Legal Aid but who cannot otherwise afford counsel;
• expanding the licensing of foreign-trained lawyers;
• supporting efforts to expand legal coaching and unbundling of legal services by family lawyers;
• improving the Mandatory Information Program delivered in the family law courts to provide more guidance to litigants;
• making the legal process for family law less adversarial and competitive, as that would make it less labour intensive; and
• reducing the legal complexity in family law, as this complexity drives legal costs and increases the time spent on legal issues.

The last suggestion is in keeping with recommendations in Bonkalo’s report, which notes: “the family justice system is hampered by systemic issues that require significant further attention. Deep-rooted systemic issues continue to thwart simplicity, proportionality, peaceful resolution and affordability. While a simplification of processes and procedures does not fall within the mandate of this review, it has become clear to me that the complexity of the current system is a fundamental problem that needs to be rectified.