Less talk, more action on paralegals in family law: Colman
By AdvocateDaily.com Staff
In December, the Law Society of Upper Canada (LSUC) approved a six-point action plan for improving access to justice in family law, which includes the creation of a special licence for paralegals and others with appropriate training to offer legal services in the area.
Developed in conjunction with the province’s Ministry of the Attorney General, the plan comes in response to a report by former Ontario Court chief justice Annemarie Bonkalo, who made a series of recommendations on the subject earlier this year.
Many of the new proposals relate to an assessment and evaluation of the services that non-lawyers should be allowed to carry out now and in the future.
“The law society and the government are right to focus on what other services can be provided by paralegals, but the bottom line looks like we’re going to have more reports after all the ones we’ve already had — enough study already,” says Colman, principal of Gene C. Colman Family Law Centre. “We know there’s a problem with access to justice. Now it’s time to accept it and take things to the next stage.
“The action plan is on the right track, but it doesn’t go far enough. It’s delaying for years a final decision with respect to allowing paralegals to appear in court,” he adds.
Colman says he fears the most promising portion of the plan — the new licence for non-lawyers in family law — is not strong enough to make a large impact on the access to justice crisis in the area.
The LSUC report says the licence in development will support training in process navigation, form completion — including financial and motions to change — and uncontested divorces as well as other areas, but makes it clear that they will all fall “outside the courtroom context.”
“It’ll be great to have people trained to help with filling out forms, but that’s going to be a drop in the bucket,” Colman says. “The public has been loud and clear that the real need is for unrepresented people to get help in court. That’s the most tension-filled part of the process.”
Bonkalo’s report recommended that paralegals be allowed to provide legal services in certain family law matters without the supervision of lawyers as part of a broader effort to boost access to justice.
Suggesting that some use of "properly trained and regulated” paralegals would be better than no representation, the former judge added that she would limit their involvement to cases involving custody, access, simple child support, restraining orders, and simple and joint divorces without property.
"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 in the report, which notes that more than 57 per cent of Ontarians in family court went unrepresented in 2014-2015, according to the province’s attorney general, adding that supervision by lawyers would do little to alleviate the problem “because the supervising law firms control the pricing.”
Colman says proper training and education for paralegals has become even more critical since accredited programs do not touch on family law because the LSUC excluded the area from their scope of practice when it took over formal regulation of the profession.
However, he believes a supervisory model can be found that both “protects the public in terms of competency of paralegals, and significantly increases access to justice.”
“I believe a family law lawyer can create a multidisciplinary firm staffed primarily with paralegals and law clerks. They would do the work of drafting documents, but it would never go out the door without being reviewed by a lawyer,” he says. “The lawyer would do intake and create the strategy, and then a well-trained law clerk or paralegal could implement it, which could include attending in court from time to time.
“If you’ve got one lawyer supervising five or 10 paralegals, you can keep the overall cost down. There are many people out there who could afford a few thousand dollars as opposed to a few tens of thousands of dollars,” Colman adds. “It’s a little more radical, but we have to be willing to take risks.”