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Civil Litigation, Family

Open lower court litigation to paralegals, law clerks, students

While there are many highly qualified and experienced law clerks who handle much of the background work when it comes to family law matters, there are many factors that would have to be considered before allowing law clerks, paralegals and students to appear in court, Toronto litigator Jenny Bogod tells AdvocateDaily.com.

If the Ontario government decides to expand the roles of legal service providers in an effort to remove barriers to access for low-income families and for self-litigants in general, questions around qualification, proper training, and experience thresholds will need to be addressed, Bogod says.

“There is the question of what is the scope of the reform,” says Bogod, an associate with Basman Smith LLP. “Would they be allowed to represent family law clients at all levels?”

Bogod suggests a “healthy experiment” may be to start by allowing senior paralegals and law clerks with significant practical experience and training under their belt to handle matters in the Ontario Court of Justice only.

The Ontario Court of Justice hears family law disputes that fall under most Ontario legislation, such as child support, custody and access and spousal support. Family law disputes involving divorce or division of property are heard by the Superior Court. 

“The Ontario Court of Justice may be where self-represented litigants could use help by having representation the most,” Bogod says.

“I would suggest that these legal service providers should be able to speak to matters and represent parties at that level of court and that that could be a good stepping stone before they are exposed to more complex property matters,” she says.

The review by the Ontario government and the Law Society of Upper Canada into whether legal service providers should handle more court matters was prompted by a deluge of self-represented litigants in the court system.

According to the Ontario Ministry of the Attorney General, more than 57 per cent of Ontarians did not have legal representation in family court in 2014-15.

“Navigating the family law system without the help of a qualified legal professional can be a daunting task, yet so many Ontarians feel they have no other choice,” Madeleine Meiller, Ontario’s Attorney General and Minister of Francophone Affairs, says in a press release.

Bogod, who was called to the bar in 2015, says that she often checks in with the senior family law clerk at her firm for procedural guidance.

“However, while many other types of service providers may have the practical skills and the know-how with the court systems, there needs to be proper training, legal education and a significant level of experience in place before representation for family law litigants is expanded," Bogod says. "Furthermore, there should an emphasis placed on strict regulation by a regulatory body that is to be responsible for overseeing and enforcing strict professional conduct rules for this new body of representatives.”

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