Law Times

Law Times • February 22, 2016 Page 5 www.lawtimesnews.com MAG, LSUC launch family law review Review to examine broader range of legal service providers BY NEIL ETIENNE Law Times T he Ministry of the Attorney General and the Law Soci- ety of Upper Canada are spearheading a review of family law to improve access to justice. The ministry and LSUC an- nounced Feb. 9 that Annemarie Bonkalo, the former chief justice of the Ontario Court of Justice and now a part-time judge, has been appointed to lead a family law review to address the lack of le- gal representation in family court. Statistics from the Ministry of the Attorney General show that more than 57 per cent of Ontar- ians lacked legal representation in family court in 2014-2015. The review will investigate whether a broader range of legal service providers, such as para- legals, law clerks, and students, should be allowed to handle cer- tain family law matters to address the lack of legal representation. "There's so many different perspectives on this [review]; the lawyers are going to scream and yell, the public is going to applaud it because it's going to give them more options, and the judiciary is going to be torn because . . . they are significantly disadvantaged by self-represented litigants coming into court," says family law spe- cialist Steven Benmor of Benmor Family Law Group, also a past chairman with the Ontario Bar Association's family law executive. A public consultation has be- gun, and public feedback is in- vited to help craft a proposal on how to provide qualified legal services to those without proper representation. Bonkalo will also be seek- ing input on what types of legal services, if handled by a broader range of providers, could im- prove the family law system and how alternative service provid- ers could be held accountable through LSUC regulation. The project's mandate does not include child protection mat- ters under the Child and Family Services Act, but it does include identifying people other than lawyers who may be capable of providing some services and what safeguards may be required to ensure quality representation. Benmor says the judiciary prefers having cases with lawyers who know how to handle matters and get them resolved efficiently. He says that by injecting law stu- dents, law clerks, and paralegals, it might cause more headaches for judges because "you're going to replace one problem with an- other problem." "The self-represented litigant will say 'I have no idea what I'm doing,' whereas the paralegal who may not have any idea of what they're doing will at least pretend as though they know what they're doing," Benmor says. Benmor says that while the results of the review remain to be seen, he is concerned that the LSUC, as the professional regula- tor, could be wading into diffi- cult waters in terms of oversight. He adds that it's important to reduce the cost and increase the efficiency of family court, and suggests that greater investment in diversion and mediation may benefit Ontarians so only mat- ters that truly require a court set- ting end up in front of the bench. Nye Thomas, executive direc- tor of the Law Commission of Ontario, says that while the "dev- il is in the details," the organiza- tion applauds the review. "We want to promote access to justice, but it has to be with the quality assurance mechanisms at the same time," says Thomas. He says the idea of using para- legals and students on certain issues in family court could ad- dress concerns of lack of repre- sentation, but he adds that estab- lishing proper oversight for those positions will be crucial. "It's very welcomed to have a principled, independent review of the paralegal issue in family law," Thomas says. "As everyone knows, there's a very large number of unmet legal needs in the family law sys- tem, and the traditional methods of meeting those needs, either through legal aid or the bar, haven't been meeting the de- mands, so it's appropriate to look at alternatives." Dr. Patricia Hughes, found- ing executive director of the Law Commission of Ontario, says the key to making success- ful changes will be in balancing the provision of alternate service providers with the quality of rep- resentation. Any recommenda- tions need to thoroughly address the educational requirements of alternate providers, she says. She led a family law review for the LCO from 2009 through 2013, trying to recommend ways to simplify and improve the sys- tem. Part of that review suggest- ed allowing paralegals to practise in family law. "Family law, more than most other areas of law, is highly emo- tional. It doesn't come just with the legal issues," she says. "You have to conclude there needs to be help; one of the questions Jus- tice Bonkalo really has to look at is not just whether paralegals, law clerks, and so on can work in family law, but what training would be needed." She said the findings were that family law matters can be quite complex and often involve other areas of law, such as tax law, that make paralegals a limited solution without increased edu- cational requirements. She says if the recommendations prop- erly address educational require- ments for paralegals, it could be a solution, but, otherwise, they would be best left to simpler fam- ily law issues. Hughes says one of the prob- lems with having lesser-trained service providers in family court rests in the emotional aspects of the matters, and education in law isn't always enough. She says those who provide support in family court must also be well trained in dealing with the highly emotional, personal family matters and be able to recognize things such as potential spousal abuse. Fay McFarlane, a lawyer who practises family law and presi- dent of the Simcoe County Fam- ily Law Lawyers Association, says "the system does not need anoth- er layer or layers. "As family law lawyers, we are well aware of the problem with self-representation and access to justice," she says. "Most family lawyers do their best to work within the system we have, including dealing with self reps. We need to think of more innovative ways to help with ac- cess to justice, but that in no way means allowing non-lawyers to represent clients who are usu- ally at the worst time in their lives emotionally and financially." McFarlane also says that "what the government should be doing is working with what we already have, such as Legal Aid and pro bono services." LSUC Treasurer Janet Minor says it is vital to explore new op- tions, and the LSUC will await the final report recommenda- tions before determining how potential added service providers would be regulated. "This review addresses a very important area in access to jus- tice," Minor says. "It provides the public and our professions with a very valuable opportunity to address various solutions to the issue." The deadline for submissions to the MAG, via mail or e-mail, is set for April 30. Minor says the final report will be due to the MAG and LSUC for consider- ation in September. LT NEWS Family law, more than most other areas of law, is highly emotional. Patricia Hughes 16th Annual TLA Awards Reception and 130th Anniversary Celebration of the Toronto Lawyer's Association Honouring: Chief Justice George Strathy, recipient of the TLA Award of Distinction Mark Lichty, recipient of the Honsberger Award Thursday, March 3, 2016 Reception at 6:00 p.m. Presentation at 7:00 p.m. The Ritz-Carlton Toronto Wellington Ballroom 181 Wellington Street West, Toronto Hors d'oeuvres and food stations. Business attire requested. Tickets available online at www.tlaonline.ca/events $125 (HST incl.) per person $1,125 (HST incl.) for a package of 10 Please RSVP by Wednesday, February 25, 2016 Nye Thomas says a large number of unmet legal needs exist in the family law system in Ontario.

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