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Increased use of paralegals in family law raises questions

Canadian Press THE CANADIAN PRESS

TORONTO — A report on streamlining and expanding family courts in Ontario suggests specialized paralegals should be allowed to provide certain services to help increase access to justice in the system. 

The suggestion is among 21 recommendations made in the report by Justice Annemarie Bonkalo that was released Monday.

Last year, the provincial government and the Law Society of Upper Canada asked Bonkalo to lead a review to consider whether a broader range of service providers could deliver certain family legal services.

Bonkalo's report notes that figures from the Ministry of the Attorney General show that in 2014-15 more than 57 per cent of Ontarians did not have legal representation in family court, meaning more than 21,000 people were unrepresented.

The former chief justice also referenced a survey that found almost half of respondents said the main reason they did not have a lawyer was that they didn't have enough money and weren't eligible for legal aid.

"Many people currently seek advice and guidance from sources such as friends, community members and the Internet instead of hiring lawyers,'' Bonkalo said in the report. "In these circumstances where untrained and unregulated individuals are teeter-tottering between providing legal information and legal advice, I believe that no assistance may be better than some assistance.''

The rising number of unrepresented litigants can be addressed more immediately and effectively by considering ways to expand the provision of legal services, she said.

Limited use of paralegals who are "properly trained and regulated, are able to provide legal services in family matters'' and are better than no representation in cases such as custody, access, simple child support, restraining orders, and simple and joint divorces without property, the report states.

"Ultimately, people who do not qualify for legal aid and feel they cannot afford a lawyer should have a greater ability to obtain some legal assistance in family law,'' Bonkalo said, acknowledging that "the issue of paralegals representing clients in court is one of considerable controversy.''

The report also points to surveys that indicate that claimants who self-represent generally have worse outcomes on economic issues, raise costs for the other party and increase the burden on the courts by reducing the chance of a settlement outside court.

Licensed paralegals with a specialization in family law should be subject to regulation and oversight by the Law Society of Upper Canada, and be insured for their services, the report recommends.

In an interview with AdvocateDaily.com, Toronto family lawyer Elinor Shinehoft says she agrees that the rising number of self-represented litigants is a concern but she is not certain expanding the scope of paralegals is the answer. (Read further comments from Shinehoft in The Lawyer's Daily).

"Some lawyers, including myself, are looking at ways to provide more services at competitive rates so clients can still receive guidance on how to deal with complex family situations," says Shinehoft, principal of Shinehoft Law.

Unbundled services, where the lawyer doesn't run the file from start to finish but may act as a consultant to the client, or offer limited services as agreed in advance, are a couple of examples, she says. Another option is to provide more services using flat rates. 

"Paralegals may be able to help diminish the inundation of self-represented litigants, as long as training is sufficient, and their scope is limited to less complex separations," Shinehoft says.
 
But often, issues are more complicated than initially expected, meaning clients may have to change representation at an added cost, she adds.
 
The family law community is waiting to hear what the accreditation requirements would be for paralegals, and what will be implemented by the Ministry of the Attorney General and the Law Society once the report is reviewed, Shinehoft says.
 
"It is difficult to comment without knowing what safeguards and requirements will ultimately be instituted."

The Law Society says unbundling offers a more affordable option for people who don't qualify for legal aid, can't afford a lawyer for their entire matter, or might otherwise choose to represent themselves.

Law Society treasurer Paul Schabas said Bonkalo's report "is an important reminder that the family justice system in Ontario needs to evolve to ensure the public has timely access and competent representation."

Ontarians can submit feedback regarding Bonkalo's recommendations online until May 15.

© 2017 The Canadian Press

- With files from AdvocateDaily.com

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