Wednesday, November 10, 2010

Unrepresented Litigants, Family Law and Ontario Paralegals

The fight of Ontario paralegals for authorization to provide legal representation in certain family law proceedings is heating up again, as noted in an editorial report today from the Toronto Star's Carol Goar:

Almost two-thirds of Ontarians who appear in family court are now unrepresented. They can’t afford a lawyer and — thanks to the new law — they can longer use a paralegal for uncontested divorces, child custody arrangements or financial support orders.

...What is clear — even to the Law Society — is that Ontarians aren’t getting the help they need to resolve life-disrupting family law problems. Its own research (the Law Society is midway through a study of unmet legal needs) shows lower- and middle-income parents are priced out of the market for legal services.
These people used to patronize paralegals. Now they can’t. And the Law Society isn’t offering them an affordable alternative.
The government promised more choice. The Law Society delivered less. Ontarians deserve an explanation.
My view mirrors Ms Goar's, as noted in our various April 2010 posts on this topic.

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.
- Garry J. Wise, Toronto
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