Thursday, April 29, 2010

Ontario Paralegals and Family Court Representation

Ontario's paralegals will proceed with a motion at the Law Society of Upper Canada's annual general meeting on May 5, 2010, seeking study of paralegals' entitlement to act in provincial Family Court matters.

The Toronto Star reports:

The motion calls on the law society’s board of governors to examine the concept of allowing paralegals to prepare family law documents, represent clients in family court and draft uncontested divorces — and to report on why it recommends or opposes the idea.

Yarmus said he is merely asking for a return to the status quo, before the law society began licensing and regulating paralegals in 2007 and restricted their practices. Many paralegals worked in family courts prior to 2007 and have since lost their businesses, he said.

But Roy Thomas, the law society’s director of communications, said paralegals were allowed to appear in family court in the past only with a court’s permission.

“The unauthorized practice of law, particularly in the delicate area of family law, poses a very serious risk to the public,” Thomas said.

While the motion has garnered predictable opposition from interest groups like Ontario's Family Lawyers' Association, anyone who has been anywhere near an Ontario Court of Justice recently cannot help but have noticed the overwhelming number of unrepresented litigants in the hallways and courtrooms - often bogging down the court's time and docket with missing paperwork, misguided submissions, and a general confusion regarding appropriate decorum in the courts.

Paralegal representation would help alleviate this increasing connundrum.

While paralegals are not lawyers, they are now wholly regulated by the Law Society of Upper Canada.

Regulation means accountability. The paralegal profession is no longer the wild, wild west.

The paralegals' request is limited and moderate - they do not seek opportunity to represent Ontarians in contested family law matters in the federal Ontario Superior Court of Justice system, which has exclusive jurisdiction to address family property issues.

It is in the interests of the Ontario public that a highly skilled paralegal profession be developed and encouraged - and that includes fostering professional awareness and responsibility among paralegals as to when they must serve their clients' interests by referring complex matters out to counsel.

Access to justice must be more than a slogan. If the only alternative to representation by a lawyer in this Province's family courts is self-representation, many litigants will have no choice but to proceed on their own.

If family law is too complex for trained paralegals, as some contend, just imagine the rubic's cube it represents to the average, unrepresented parent or separated spouse, especially where English is not that individual's first language.

Who is left to pick up the pieces?

Ontario Court judges, of course.

The naysayers must recognize reality - some people simply cannot afford to retain lawyers. They will not come to us.

They deserve another, accesible option in the provincial family court system.

There is no reason why the Law Society cannot develop a family law CLE accreditation process for paralegals - one that will safely permit our statutory regulator to unlock the gates of Ontario's provincial domestic courts for specifically accredited and qualified licenced paralegals.

The critical question is how paralegal family court access should be controlled and monitored. This question deserves study.

The motion should be given very serious consideration.

- Garry J. Wise, Toronto

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