Legal Report \ Family Law March 19, 2018|Written By Michael McKiernan
Paralegals are poised to have more of a role in family law disputes despite resistance from the bar.
For Marshall Yarmus, the end of a decade-long journey is finally in sight.
The former vice president of the Paralegal Society of Ontario says the Law Society of Ontario let down the public when it took on responsibility for regulating paralegals in the province only to ban them from practising in the area of family law.
Unsatisfied by the lack of progress on the issue, he instigated public campaigns urging the regulator to complete the job it started in 2007. In 2010 and 2013, Yarmus transformed the traditionally sleepy annual general meeting of the LSO into essential viewing events for the profession as part of a team tabling motions to expand the scope of paralegal practice to include family law.
Both motions were ultimately withdrawn at short notice in exchange for assurances of further study, but it wasn’t until December 2017 that Yarmus felt his efforts were finally vindicated. That was when benchers of the LSO committed to the creation a special licence for paralegals to offer limited services in family law, including process navigation, form completion and uncontested divorces.
In addition, the regulator’s governing body endorsed a plan to study what other services should come under a further expanded licence, including the possibility of courtroom advocacy by paralegals, as part of its response to the Family Legal Services Review by former Ontario Court Chief Justice Annemarie Bonkalo.
“One of the reasons I started this campaign was because I kept getting calls from litigants looking for services at a lower price, so I’m excited that we’re finally going to get access to justice for people with family law problems who can’t afford a lawyer,” says Yarmus, who runs Toronto-based Civil Litigations Paralegal Services.
“This time it’s actually going to happen. The law society and the attorney general are determined to implement this, and people will at last have a choice of legal service provider,” he adds.
Although he hasn’t yet decided whether to personally train up in family law once the new licence is available, Yarmus says he supports the move to mandate extra requirements before paralegals can begin practising in the area.
“Education is very important. We don’t want anyone who’s unqualified to be doing it,” he says.
But as paralegals inch toward regulated family law practice, a group of familiar foes stands in their way: the family law bar. Many lawyers in the area argue that anything short of a law degree is inadequate preparation for the complexities of family law.
Orillia, Ont. lawyer Fay McFarlane says the law society is making a mistake by giving paralegals an entryway to family law.
“It may be disastrous. Even us, as family law practitioners, have issues sometimes dealing with clients and their emotions,” she says. “I don’t think paralegals can handle it.
“If they had the training that lawyers have, maybe they could, but that’s why we’re lawyers,” McFarlane adds.
“Family law is complicated enough, but I don’t know how you can solve the problems associated with that by lowering the standards for people to be able to practise,” says David Harris-Lowe, president of the Simcoe County Law Association and partner at Barrie, Ont. firm Barriston Resolution Services.
He says the LSO proposal won’t directly affect him because his family law clients are unlikely to consider hiring paralegals even if they had the option.
“I recognize that there is an element of self-interest, at least to some lawyers,” Harris-Lowe says. “But when I hear that judges are saying this is a problem, that’s more concerning to me, because they don’t have that self-interest. Their interest is in having cases resolved fairly and expeditiously in the court system.”
Members of Ontario’s family law bench upped the volume of their objections after Bonkalo’s March 2017 report recommended paralegals be allowed to provide legal services, without supervision by lawyers, in the areas of custody, access, simple child support cases, restraining orders, enforcement and simple divorces without property.
A program of lawyer supervision would have no impact on the access to justice crisis in family law, she wrote, adding that “only licensed and independent paralegals can offer meaningful competition to lawyers.”
Despite initially favouring a blanket ban on courtroom appearances by paralegals in family law matters, Bonkalo explained that her mind changed during the consultation process.
“As I continued to explore the issues and hear from different communities, it became clear to me that precluding paralegals from appearing in court would be a disservice to clients,” she wrote, noting that demand for help among unrepresented family law litigants peaks when they are called to appear in court.
Provincial Court Justice Marion Cohen voiced her concerns with Bonkalo’s conclusions to the Toronto Star, warning that “paralegals will squeeze the lawyers out and the quality of justice in the Ontario Court of Justice will suffer” if they are implemented.
In his submission to the LSO, Justice George Czutrin, a senior judge of the Superior Court’s family branch, said it was “unfortunate” that Bonkalo’s report gave so little weight to the concerns “experienced [by] family justice participants,” adding that allowing paralegals to provide family law advice was not the answer to challenges in the system.
“In fact, it is much more likely to cause its own set of problems without adding real value,” Czutrin wrote.
Kavita Bhagat, a family lawyer in Brampton, Ont., says any attempt to hive off parts of family law as acceptable for paralegals to practise is doomed to failure because of the dynamic nature of disputes. In any case, she says, Bonkalo’s report put too little emphasis on alternative methods of dispute resolution.
“Paralegals are attractive to the attorney general because it’s a very easy solution to propose,” she says. “But it’s also a Band-Aid solution that ignores the real problems of family law.”
At the law society, Howard Goldblatt, chairman of its access to justice committee, won’t be tied down to any deadline for implementing the new paralegal licence or reporting back on its possible future expansion. But the process will give paralegal critics another chance to make their case.
“We want to ensure that those who have views and voices are heard,” he says. “Ultimately, the law society’s job is to regulate in the public interest, and that is what will prevail, as opposed to any stakeholders on either side of the debate.”
Julie Macfarlane, a law professor at the University of Windsor and director of the National Self-Represented Litigants Project, says Ontarians are lining up to use paralegals in family law. She’s frustrated both by the glacial pace of developments and the arguments of family lawyers, which she calls “elitist.”
“There has been a lot of bad talk about paralegals, which I think is unfair. It seems disingenuous to suggest that nobody but lawyers can do this work,” Macfarlane says.
Still, she’s puzzled by the vociferousness of the bench’s opposition to Bonkalo’s recommendations.
“I would have thought that it would be better for them to have someone representing a party than nobody,” Macfarlane says.
“The underlying problem is the culture that says lawyers have to have their hands around everything. There’s a tremendous resistance to loosening the grip,” she adds.
Even in jurisdictions that have embraced family law paralegals more openly, Macfarlane says, there is evidence of lawyers and law societies inhibiting their progress.
For example, the Law Society of B.C. allows designated paralegals to offer family law services under the supervision of a lawyer. However, the law society was forced to abandon a pilot project allowing paralegals into the courtroom when only three lawyers took advantage of the rule by sending paralegals under their supervision before a judge over a two-year period, producing insufficient data for assessment.
Michele Ross, a designated paralegal at Quay Law Centre in New Westminster in B.C. who was one of the few paralegals to make it into court as part of the project, says it was a missed opportunity.
“Some lawyers would benefit from some education about what we can do and how we can help clients save money,” she says.
Macfarlane says there are Ontario family lawyers who support a bigger role for paralegals, but she worries they feel forced into silence because of the overwhelming consensus against them.
In Vancouver, Leisha Murphy, partner at Connect Family Law, feels no such pressure. She says her firm’s designated paralegals are well equipped to deal with many aspects of clients’ cases and would love to see the law society offering them more independence in practice.
“I prefer to go to the higher-level aspects, like the strategic direction of the file,” she says. “We need to loosen the reins. With so many people unrepresented, it’s inevitable in the long run anyway, and we as lawyers need to adjust to that reality.”