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Bonkalo recommendations fail to address broader issues: Sullivan

The Family Legal Services Review focuses too much on the expanded use of paralegals without considering other potential fixes to the system, says Ottawa family lawyer Timothy N. Sullivan.

Sullivan, principal of SullivanLaw, says the report by former Ontario chief justice Annemarie Bonkalo is problematic because it proposes paralegals take on some responsibilities of family law and not others. But the larger issue, he says, is there are potential solutions not addressed by the report.

In her report to Ontario's Ministry of the Attorney General, Bonkalo suggested a specialized licence for paralegals to provide specific family legal services without the supervision of lawyers. She recommended those services include custody and access issues, simple child support cases, restraining orders and straightforward divorce matters that don’t involve property issues.

“The recommendations fall within the report's terms of reference, but they are probably deficient in accomplishing the task of having more people represented in court,” Sullivan tells AdvocateDaily.com. “The focus was how to get paralegals into the family law system.”

There have been long-standing concerns in family law about the rise of self-represented litigants — estimated at 57 per cent in 2014-15 — resulting in reduced access to justice for members of the public. But people wading into the often foreign territory of a courtroom without the guidance of a lawyer are also blamed for bogging down an already taxed system.

Sullivan says while the large numbers of self-represented litigants present a problem in family law, he has concerns about the premise of the review, mainly because it was made within the constraints of the terms of reference. The general feeling in the family law bar is that the terms were not broad enough to address access to justice, affordability and the need to include more representation, he adds.

He says the discussion around changes to family court rules is largely lost to a focus on an increased role for paralegals. 

Additional funding for legal aid also needs to be examined as part of the solution, Sullivan says.

“I don’t think squeezing out lawyers makes things less expensive," he says. "And I don’t think including paralegals in a limited number of areas increases access to justice or reduces costs."

Sullivan is concerned about the inconsistencies in the potential role of paralegals if the recommendations are adopted.

“How does anyone know they only have a custody and access issue, and a simple support issue, without having a more complex property or spousal support issue?” says Sullivan. “I also don’t think there’s really such a thing as simple child support cases.

“Every discussion with every client I’ve ever had opens up with the five big issues you deal with in family law: custody, access, child support, spousal support and property division.”

Improving access to justice and reducing costs will require a broader mandate, including a complete consultation with stakeholders, Sullivan says. 

The government, along with the Law Society of Upper Canada, is expected to work on an action plan to address the recommendations by fall 2017. 

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