Law Times

Law Times • June 20, 2016 Page 9 www.lawtimesnews.com Family law opening up to non-lawyers BY JUDY VAN RHIJN For Law Times S ubmissions are in and consultations have closed on the controversial is- sue of allowing parale- gals, law clerks, and law students to accept carriage of family law matters. The need to assist self- represented litigants is driving the campaign to find ways that non- lawyers can assist without lower- ing standards of practice beyond an acceptable limit. "Anyone working with the most vulnerable people, such as family mediators, knows that we are inundated, as are judges. We desperately need help," states Hil- ary Linton, the vice chairwoman of the Family Dispute Resolution Institute of Ontario and a media- tion service provider. "There is a limited role for li- censed regulated trained parale- gals in family law. The challenge is that it is such a legally compli- cated area. Those who work in the area see how people are dis- advantaged by bad or incomplete advice. It is fraught with hazards." Lawyer and educator Omar Ha-Redeye points out that when it comes to access to justice, family law has the most acute problems. "The public is enormously upset at the legal system and particularly family law. Finan- cial interests are geared improp- erly for family law bar. There is no financial incentive to change. That's why the push for change is coming from outside the family law bar — the attorney general and the law societies, whose em- phasis is on public interest, not just lawyers' interests," he says. Ha-Redeye is of the opinion that legal services as provided by the legal profession don't work and are not affordable for 90% of the population. "The situation screams for a remedy. Protectionism is self- serving and not serving the pub- lic need," he says. The opportunity to canvas possibilities has now been pro- vided through the Family Legal Services Review chaired by Jus- tice Annemarie E. Bonkalo. According to the Ministry of the Attorney General, she is mandated to "identify the legal services which, if provided by persons in addition to lawyers, could improve the family justice system" and "recommend proce- dures, mechanisms and/or safe- guards to ensure the quality of family legal services provided by alternate legal service providers." Consultations closed on April 30. The topic was also canvassed at the FDRIO Un-Conference on May 4 — an un-conference being an unstructured confer- ence where everyone votes on what they want to speak about. "One discussion was about the role of paralegals. It's a very live topic," reports Linton. "Ev- eryone agrees it's timely to be re- examined no matter what stand they take." Ha-Redeye included the topic in his talk on the use of early tri- age in family law cases. "People were looking to ex- plore the participation of parale- gals, maybe under the direction or co-ordination of a lawyer at the outset. As expected, there was a varied response, including enormous pushback from fam- ily lawyers," he says. That pushback echoes the stand taken by the Ontario Bar Association in its submission to the Legal Services Review. It has maintained its tradi- tional position that "f lawed or in- appropriate advice given to a cli- ent in the area of family law can have devastating consequences for clients and their families last- ing for many years if not genera- tions. Simply stated paralegals do not have the education, training or skills to properly represent vulnerable children, parents or spouses as they navigate the fam- ily justice system." The OBA expressed a fear that creating an inferior level of in- formation will create a two-tier system that will not serve access to justice. This fear was echoed in a joint submission by mediation organizations such as the FDRIO, ADR Institute of Ontario, Ontar- io Collaborative Law Federation, and Family Mediation Canada, which said: "It is unacceptable to lead families to believe that para- legals, particularly unsupervised, can provide a similar level of ser- vice as lawyers." "One thing everyone agrees on is that they must be compe- tent at what they're doing," says Ha-Redeye. "How do you ensure competence — through educa- tion, additional training, over- sight, supervision, and direction of a family lawyer?" The OBA also says "the sig- nificant training and oversight required would undermine the cost effectiveness believed to be associated with this model." "There is no guarantee using paralegals will make services af- fordable," warns Linton. "They could charge $100 an hour, or $75 an hour. They may just end up competing with lawyers and then I'm not sure anything will be achieved." Despite these views, the prob- lem of self-representation is so unavoidable that the legal com- munity is looking for ways to utilize non-lawyers in the family law field. "It will involve carving out a very narrow application, where the level of responsibility is minimized," says Ha-Redeye. He suggests assisting with education, with forms and fi- nancial statements, and also sees possibilities in an early triage system as well as op- portunities on the "back end." "When people have an order and they think their legal issues are resolved, there could be annual reviews and support. Rather than a lawyer re-litigating every year over minor adjustments to income or minor issues with a parenting schedule, a paralegal can assist with that," he says. LT FOCUS Omar Ha-Redeye says when it comes to access to justice, family law has the most acute problems. 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