LSO paralegal decision will not solve access to justice problem: TLA

By Tony Poland, LegalMatters Staff • The Toronto Lawyers Association (TLA) did not oppose a Law Society of Ontario (LSO) decision that allows paralegals to provide some family law services but says it will have little impact on the issue it was intended to address.

“We are not saying that we are convinced it is a useful idea but we have no objection,” says Sarah Boulby, a partner at boutique family law firm Boulby Weinberg LLP and chair of the TLA’s family and estate committee. “However, in our opinion, this plan does not solve the problem, which is the question of access to justice. But at least it does not expose the public to harm or risk.

“This is acceptable because paralegals will be permitted to take on tasks that can be performed without formal legal training,” she tells LegalMattersCanada.ca.  

Under the plan approved on Dec. 1, paralegals must complete 260 hours of training and then pass an exam.

They would then be licensed to assist family law clients in such matters as name changes, and preparing applications for joint and uncontested divorces and to file domestic contracts with the court for enforcement.

More robust version abandoned earlier this year

A more robust version of the licence was abandoned earlier this year after staunch opposition from family law stakeholders, says Boulby.

She says the issue “has been a diversion of resources and energy.” 

“This has gone on for years with paralegals trying to get really sweeping authority to practise law,” she says. “The proposal that had been put forward was really quite a radical initiative. It would have essentially allowed paralegals to practise law without adequate training. That seemed to be a recipe for disaster.”

A joint communiqué released by the Advocates’ Society, the Federation of Ontario Law Association, the Family Lawyers Association and the TLA earlier this year stated the proposal would “not serve the critical legal needs of vulnerable members of the community.”

‘Family law matters are unpredictable and complex’

“Family law matters are unpredictable and complex, and the consequences for the individuals and families involved can be grave,” the communiqué stated. “The proposed motion puts the LSO at risk of failing to meet its statutory obligation to regulate the professions in the public interest and to ensure legal service providers meet the appropriate standards of professional competence.” 

At the time, Boulby explained family law is complicated, dealing not only with complex financial considerations but child issues. She noted the proposed training program for paralegals was only 28 weeks, which “is not even slightly realistic.”

“You need to know the family law legislation. You also need to understand tax legislation, issues of bankruptcy, business law and how to draft contracts. That is an expertise in and of itself,” Boulby says. “It is necessary to have a three-year law degree and to have articled, completed the LPP program or clerked in the court.”

She says many lawyers are of the opinion that there would be “no harm or risk to the public” if paralegals were allowed to do straightforward filings.

TLA is not opposed to new plan

“What has since happened is a proposal was brought forth to have a family law service provider license on a very limited basis for these tasks,” says Boulby. “It is something that the judiciary is fine with and that the TLA is not opposed to.”

Still, it does not really solve the access to justice issue, she says, “because these are tasks that people do not need legal assistance for.”

“It fails to address the plight of the middle class,” she explains. “There are low-income people who have access to legal aid and people with more means who can afford legal services. Then there is the middle class. People who just do not have the funds for legal services, yet do not qualify for legal aid.

“Of course, it is not only an access to justice issue. Protecting the public in general is essential,” adds Boulby. “That is the key and that is why the TLA did not oppose this new proposal. It does not harm the public.”

She says what is needed now is “a focus on initiatives that actually will promote access to justice.” 

Legal forms could be simplified

That could include expanding administrative initiatives that allow people to make changes in certain family law matters without going to court, says Boulby. Legal forms could be simplified so people could do things themselves, she says.

“We also need to have unified family courts in every jurisdiction,” Boulby says. “Aside from having judges who are specialized in family law, which is extremely helpful when you have people who are not represented, there are also free or reduced-cost mediation services. 

“There are informational services for members of the public,” she adds. “There is a pilot project offering a form of summary judicial arbitration in uncomplicated cases that could be expanded.”

An expansion of pro-bono work would also be helpful, Boulby notes.

Association will continue to monitor the issue

She says the TLA will be keeping an eye on developments in the next few years, especially in light of some comments made after the recent proposal was approved.

Michelle Lomazzo, a paralegal and member of the LSO board told CBC that while the new plan falls short of what was originally contemplated, she suggested there could be further developments.

“It’s this or nothing … at least it’s a foot in the door,” she told CBC. “I believe we’ll be able to add things to it over time.”

Boulby says she expects there will be future proposals.

“There is an expected review of the program after three years. However, we are not going to change our position in that time,” she says. “This plan is acceptable only because paralegals will be doing tasks that can be performed without formal legal training. 

“That doesn’t mean that if they reintroduce the failed proposal to expand their powers that there is going to be an agreement on our behalf,” Boulby adds. “The fact that it may be possible for paralegals to successfully help people fill out divorce forms, which are really quite easy to complete, does not qualify them to practise law. That requires legal training.”