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Report recommends using paralegals to streamline, expand family law in Ontario

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 just over 21,000 people were unrepresented.

The former chief justice also referenced a survey that found 49 per cent of respondents indicated that the main reason they did not have a lawyer was that they did not have enough money and were not 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, "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, while noting that "the issue of paralegals representing clients in court is one of considerable controversy.''

The report also points to surveys that indicate those 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.

Despite those safeguards, Toronto family lawyer Jennifer Samara Shuber tells AdvocateDaily.com that she has concerns about the proposal.

"I like the idea of a specialized paralegal better than I like the idea of an unspecialized one, but it wouldn't be my choice," says Shuber, a family lawyer with Beard Winter LLP. "I'm uncomfortable with anyone other than a lawyer doing work of the complexity you get in family law."

Although the report recommends keeping some parts of family law off limits to paralegals, such as Hague Convention matters or international abductions, Shuber says she is particularly worried that the report contemplates opening up matters of custody to them.  

"There are many aspects of custody that can be just as complicated as property or support cases, if not more. I don’t think that's an area paralegal could dive into after a limited amount of training," she says. 

The report also recommends making more use of limited scope retainers, also known as "unbundling'' agreements, in which a lawyer or paralegal provides legal services for part, but not all, of a client's legal matter.

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.

Shuber says she favours the focus on unbundling, and that lawyers are more likely to embrace limited scope retainers than in the past, as they have gained confidence it will not expose them to a negligence lawsuit.

"Lawyers, as a profession, need to recognize what the client base needs, and provide services that meet those needs," Shuber says. "If there is a group of people we are missing, then family lawyers need to target them with unbundling, legal coaching and whatever else needs to be done to service those individuals."

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.

– With files from AdvocateDaily.com

© 2017 The Canadian Press

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