Paralegals are poised to have more of a role in
family law disputes despite resistance from the bar.
Marshall Yarmus, the end of a decade-long journey is finally in sight.
The former vice
president of the Paralegal Society of Ontario says the Law Society of Ontario
let down the public when it took on responsibility for regulating paralegals in
the province only to ban them from practising in the area of family law.
Unsatisfied by the lack
of progress on the issue, he instigated public campaigns urging the regulator
to complete the job it started in 2007. In 2010 and 2013, Yarmus transformed
the traditionally sleepy annual general meeting of the LSO into essential
viewing events for the profession as part of a team tabling motions to expand
the scope of paralegal practice to include family law.
motions were ultimately withdrawn at short notice in exchange for assurances of
further study, but it wasn’t until December 2017 that Yarmus felt his efforts
were finally vindicated. That was when benchers of the LSO committed to the
creation a special licence for paralegals to offer limited services in family
law, including process navigation, form completion and uncontested divorces.
In addition, the
regulator’s governing body endorsed a plan to study what other services should
come under a further expanded licence, including the possibility of courtroom
advocacy by paralegals, as part of its response to the Family Legal Services
Review by former Ontario Court Chief Justice Annemarie Bonkalo.
“One of the reasons I
started this campaign was because I kept getting calls from litigants looking
for services at a lower price, so I’m excited that we’re finally going to get
access to justice for people with family law problems who can’t afford a
lawyer,” says Yarmus, who runs Toronto-based Civil Litigations Paralegal
“This time it’s
actually going to happen. The law society and the attorney general are
determined to implement this, and people will at last have a choice of legal
service provider,” he adds.
he hasn’t yet decided whether to personally train up in family law once the new
licence is available, Yarmus says he supports the move to mandate extra
requirements before paralegals can begin practising in the area.
“Education is very
important. We don’t want anyone who’s unqualified to be doing it,” he says.
But as paralegals inch
toward regulated family law practice, a group of familiar foes stands in their
way: the family law bar. Many lawyers in the area argue that anything short of
a law degree is inadequate preparation for the complexities of family law.
Orillia, Ont. lawyer
Fay McFarlane says the law society is making a mistake by giving paralegals an
entryway to family law.
“It may be disastrous.
Even us, as family law practitioners, have issues sometimes dealing with clients
and their emotions,” she says. “I don’t think paralegals can handle it.
“If they had the
training that lawyers have, maybe they could, but that’s why we’re lawyers,”
“Family law is
complicated enough, but I don’t know how you can solve the problems associated
with that by lowering the standards for people to be able to practise,” says
David Harris-Lowe, president of the Simcoe County Law Association and partner
at Barrie, Ont. firm Barriston Resolution Services.
He says the LSO
proposal won’t directly affect him because his family law clients are unlikely
to consider hiring paralegals even if they had the option.
recognize that there is an element of self-interest, at least to some lawyers,”
Harris-Lowe says. “But when I hear that judges are saying this is a problem,
that’s more concerning to me, because they don’t have that self-interest. Their
interest is in having cases resolved fairly and expeditiously in the court
Members of Ontario’s
family law bench upped the volume of their objections after Bonkalo’s March
2017 report recommended paralegals be allowed to provide legal services,
without supervision by lawyers, in the areas of custody, access, simple child
support cases, restraining orders, enforcement and simple divorces without
A program of lawyer
supervision would have no impact on the access to justice crisis in family law,
she wrote, adding that “only licensed and independent
paralegals can offer meaningful competition to lawyers.”
initially favouring a blanket ban on courtroom appearances by paralegals in
family law matters, Bonkalo explained that her mind changed during the
“As I continued to
explore the issues and hear from different communities, it became clear to me
that precluding paralegals from appearing in court would be a disservice to
clients,” she wrote, noting that demand for help among unrepresented family law
litigants peaks when they are called to appear in court.
Provincial Court Justice
Marion Cohen voiced her concerns with Bonkalo’s conclusions to the Toronto Star, warning that “paralegals will squeeze the lawyers out and the quality
of justice in the Ontario Court of Justice will suffer” if they are
In his submission to
the LSO, Justice George Czutrin, a senior judge of the Superior Court’s family
branch, said it was “unfortunate” that Bonkalo’s report gave so little weight
to the concerns “experienced [by] family justice participants,” adding that
allowing paralegals to provide family law advice was not the answer to
challenges in the system.
“In fact, it is much
more likely to cause its own set of problems without adding real value,”
Bhagat, a family lawyer in Brampton, Ont., says any attempt to hive off parts
of family law as acceptable for paralegals to practise is doomed to failure
because of the dynamic nature of disputes. In any case, she says, Bonkalo’s
report put too little emphasis on alternative methods of dispute resolution.
attractive to the attorney general because it’s a very easy solution to
propose,” she says. “But it’s also a Band-Aid solution that ignores the real
problems of family law.”
At the law society,
Howard Goldblatt, chairman of its access to justice committee, won’t be tied
down to any deadline for implementing the new paralegal licence or reporting
back on its possible future expansion. But the process will give paralegal
critics another chance to make their case.
“We want to ensure that
those who have views and voices are heard,” he says. “Ultimately, the law
society’s job is to regulate in the public interest, and that is what will
prevail, as opposed to any stakeholders on either side of the debate.”
Julie Macfarlane, a law
professor at the University of Windsor and director of the National
Self-Represented Litigants Project, says Ontarians are lining up to use
paralegals in family law. She’s frustrated both by the glacial pace of
developments and the arguments of family lawyers, which she calls “elitist.”
“There has been a lot
of bad talk about paralegals, which I think is unfair. It seems disingenuous to
suggest that nobody but lawyers can do this work,” Macfarlane says.
Still, she’s puzzled by
the vociferousness of the bench’s opposition to Bonkalo’s recommendations.
“I would have thought
that it would be better for them to have someone representing a party than
nobody,” Macfarlane says.
“The underlying problem is the culture that
says lawyers have to have their hands around everything. There’s a tremendous
resistance to loosening the grip,” she adds.
Even in jurisdictions that have embraced
family law paralegals more openly, Macfarlane says, there is evidence of
lawyers and law societies inhibiting their progress.
For example, the Law Society of B.C. allows
designated paralegals to offer family law services under the supervision of a
lawyer. However, the law society was forced to abandon a pilot project allowing
paralegals into the courtroom when only three lawyers took advantage of the
rule by sending paralegals under their supervision before a judge over a
two-year period, producing insufficient data for assessment.
Michele Ross, a
designated paralegal at Quay Law Centre in New Westminster in B.C. who was one
of the few paralegals to make it into court as part of the project, says it was
a missed opportunity.
“Some lawyers would benefit from some
education about what we can do and how we can help clients save money,” she
Macfarlane says there are Ontario family
lawyers who support a bigger role for paralegals, but she worries they feel
forced into silence because of the overwhelming consensus against them.
Leisha Murphy, partner at Connect Family Law, feels no such pressure. She says
her firm’s designated paralegals are well equipped to deal with many aspects of
clients’ cases and would love to see the law society offering them more
independence in practice.
“I prefer to go to the higher-level
aspects, like the strategic direction of the file,” she says. “We need to
loosen the reins. With so many people unrepresented, it’s inevitable in the
long run anyway, and we as lawyers need to adjust to that reality.”