Law Times

Page 4 March 13, 2017 • Law TiMes www.lawtimesnews.com NEWS NEWS NEWS Family law report comes under fire BY ALEX ROBINSON Law Times L awyers are dismayed af- ter a much-anticipated report has recommended broadening the scope of family law to let paralegals pro- vide legal services in some mat- ters. If implemented, the report's recommendations would let paralegals represent clients in court in a number of family law areas, including custody, access and simple child support cases. "Our belief is that it won't sig- nificantly improve access to jus- tice for those Ontarians who are involved in the family law jus- tice system," says Eldon Horner, chairman of the Federation of Ontario Law Associations. "It's our position that the big- gest difficulties today for people trying to participate in the fam- ily law system is with the com- plexity of the system itself. That's where the focus should be." Family lawyers insist their opposition to the recommenda- tions is not just about the possi- bility of being bumped out of the market. They say their concerns relate to ensuring the most vul- nerable people get the legal rep- resentation they need in a com- plex area of law. In a statement responding to the report, Martha McCarthy, a family lawyer and past president of the Advocates' Society, said she was deeply concerned with a number of the recommenda- tions. "In particular, a move to- wards depriving families of important safeguards, like the protection afforded by quali- fied family lawyers providing oversight of life-changing legal decisions such as the custody of a child, is alarming," she said in the joint statement with Bradley Berg, current president of the Advocates' Society. The review, which was con- ducted by Justice Annemarie Bonkalo, contended that para- legals should also be allowed to represent clients in matters con- cerning restraining orders, en- forcement and simple and joint divorces without property, but it draws the line at more complex proceedings. The report recommends that paralegals should not be allowed to provide services that involve child protection, property, spousal support or relocation. They also would not be able to do anything that involves the Convention on the Civil Aspects of International Child Abduc- tion or complex child support in which discretionary determina- tions are needed to arrive at an income amount. Opponents have said that paralegals simply do not have the same training as lawyers and that family law is a very complex area, in which even tasks that seem simple can have serious consequences that lead to more complicated matters. Opponents have also argued that paralegals simply do not have the same training as law- yers and called for the govern- ment to let other reforms play out before considering widening the scope of family law. On the same day as the pro- vincial government and the Law Society of Upper Canada released the report, the Minis- try of the Attorney General an- nounced that it had asked the federal government to support plans to expand Unified Fam- ily Courts provincewide. This announcement was a welcome development for family lawyers, but they called on the govern- ment to let such reforms play out before considering widening the scope of family law. Bonkalo has also recom- mended paralegals should not have to seek a judge's permis- sion before entering court, as it would create uncertainty and would be a disincentive to hir- ing a paralegal. Paralegals can currently appear in the Small Claims Court and the Ontario Court of Justice for Provincial Offences Act infractions. "When I began this review, my own feeling, based on the writ- ten submissions I received, was that in-court assistance would not be appropriate and that a line could be reasonably drawn at the courtroom door," wrote Bonka- lo, who is a former chief justice of the Ontario Court of Justice and currently a part-time judge. "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." Bonkalo called on the law society to create a specialized licence for paralegals to provide the recommended services and to conduct a review of the im- pact of paralegals in family law five years after implementing the recommendations. The review was commis- sioned by the law society and the Ministry of the Attorney General in order to find ways to tackle access to justice issues in the area of family law. Re- cent government statistics show more than 57 per cent of Ontar- ians who went through the fam- ily court system in 2014-15 were self-represented litigants. While the recommendations concerning paralegals were some of the more controversial aspects of the report, other parts were top of mind for proponents. The review called on MAG and Legal Aid Ontario to ensure continued funding to student programs, and it encouraged clinics to work with the judicia- ry to identify more situations in which law students could work on matters without supervision by a lawyer. Nikki Gershbain, the nation- al director of Pro Bono Students Canada, applauded the report's nod to student organizations that she says can play a much bigger role in filling holes in the family justice system. "The profession has long rec- ognized that law students are an untapped market when it comes to filling some of the gaps in the justice system," says Gershbain, who is currently on leave from PBSC and is working as a fellow at the National Self-Represented Litigants Project. She was also a member of Bonkalo's advisory board. Bonkalo also recommended that the law society and LawPRO should support the expanded use of unbundled services, in- cluding educational opportuni- ties and tools that would address liability concerns lawyers have when considering whether to of- fer such services. "Unbundling is an example of a new practice model that the profession really needs to do a better job of promoting and en- couraging," Gershbain says. The report also recommend- ed that the law society develop incentives for lawyers to make legal coaching a part of their practice. Bonkalo has submitted the report to MAG and the law society, which will now deter- mine the next steps. LSUC Treasurer Paul Schabas says the report is an import- ant call for action to improve representation of people in the family justice system. Schabas says the decisions concerning the recommenda- tions will be up to Convocation. "This is early days. We're cer- tainly aware that there are strong feelings on both sides of the issue from groups that have their own particular interests," he says. "And our job is to step back from having those particular in- terests and make sure that we're thinking more objectively about the public interest." The law society and MAG will accept feedback on the re- port's recommendations until May 15. The regulator will then develop an action plan with the provincial government that Schabas says will come before Convocation for a vote in the fall of 2017. "Over half of Ontarians who use the family law system do not have legal representation, and the problem is growing," Attor- ney General Yasir Naqvi said in the statement. "It is more important than ever that we work to improve ac- cess to justice for families. "Our government is ready to act. We are committed to working with our partners and the federal government to con- sider changes that will have a real, positive impact on people's lives, like allowing paralegals to be trained to provide family law services." LT Nikki Gershbain says more resources are needed to be put into programs that lever- age the skills of law students to fill holes in the family justice system. SKIMMING THE SURFACE IS FINE UNTIL A DEEPER DIVE IS REQUIRED. Start with Practical Law Canada. Whether you need a surface view or a deeper understanding of a legal issue, Practical Law Canada offers up-to-date, straightforward how-to guides, annotated standard documents, checklists, and more. Our expert lawyer-editors have significant practice experience. They create and maintain hundreds of practical resources to match the needs of practitioners in the following practice areas: • Capital Markets & Securities • Corporate and M&A • Commercial Transactions • Employment • Competition • Finance • Corporate & Commercial Litigation For more information or to sign up for a free trial, visit www.practicallaw.ca © 2016 Thomson Reuters Canada Limited 00242CZ-85651-NK Untitled-2 1 2017-03-07 1:38 PM

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