Including Paralegals in Family Law – the Bonkalo Report

Few things are as contentious in the bar in Ontario as the scope of paralegals. Created in 2007, paralegals have been practicing under a limited scope which has explicitly excluded the provision of family services.

Last week, Justice Annemarie E. Bonkalo released the Family Legal Services Review report, which was part of the Expanding Legal Services Options for Families review being conducted by the Ministry of the Attorney General.

Although the report also focuses on more unbundled services and coaching by lawyers, and use of law students to provide family law, it recognizes,

The most controversial recommendations, however, will be those with respect to the provision of legal services in family matters by paralegals with a specialized licence in family law.

The recommendations in the report focusing on paralegals include the creation of a specialized license with the following features:

  • The specialized licence to provide specified legal services in family law would only be available after the completion of the existing paralegal license.
  • Part of the education and training for the specialized license should include gender-based violence, family dynamics, client counselling, forms completion, ethics and professionalism, substantive and procedural family law and indicators that a client requires referral to a lawyer.
  • The specialized license should include a practical, experiential component in family law.
  • Specialized paralegals in family law would still be subject to regulation and oversight by LSUC, and would require insurance for their services.

This new paralegal specialization would have a limited scope of practice, as follows:

  • Paralegals should be limited to providing legal services for custody; access; simple child support cases; restraining orders; enforcement; and simple and joint divorces without property.
  • They would be excluded from providing services for Hague Convention applications; child protection; property; spousal support; complex child support; and relocation.
  • The services provided would include conducting client interviews; completing forms and advise how to use them; obtain and file documents; communicate with the other side; provide representation in mediation and court proceedings other than trials; and advise clients generally about rights and obligations.
  • The family law forms would potentially be amended to allow for a notation to indicate who had prepared, assisted or filled these forms.

To assist with this process, LSUC would foster collaboration between lawyers and paralegals, including the creation of referral networks and interdisciplinary teams. Legal aid would apply this interdisciplinary model to family law to include paralegals, as would the Ministry of the Attorney General in Family Law Information Centres (FLICs).

LSUC would conduct a 5-year review to examine the impact of family law paralegals on access to justice, in particular whether they have had an impact on self-representation. To execute this, an evaluation process should be in place to measure client and paralegal satisfaction, and to solicit perspectives from the broader family justice community.

This last point might prove the most contentious. The family law bar has been largely opposed to including paralegals in family law. But they have also failed to contribute to any substantive change to the self-representation crisis observed in family proceedings.

This report also canvassed the work conducted paralegals in their existing scope of practice. Legal Aid Ontario indicated that their Criminal Law Paralegal Pilot Project provided some promise that a properly trained and supported paralegal could competently provide a broader range of services, including some family law matters, as long as the appropriate safeguards and frameworks were in place. The review spoke with tribunal adjudicators in the existing scope of practice for paralegals, stating,

In the experience of many of these tribunals, paralegals excel at paperwork and advocacy in less complex cases. In each of these areas, paralegals and lawyers have formed formal and informal affiliations that allow for referrals where cases would be better handled by one or the other. My impression after my consultations with these tribunal members was that, without paralegals, many tribunals would be not be able to function as efficiently and effectively.

If paralegals are to practice family law, as appears to be the case in the near future, there are a number of public policy concerns to consider. First and foremost is the enormous opposition to paralegals in the existing family bar. Without the support of family lawyers, paralegals are unlikely to excel in their entry into this area. Opposition to paralegals may even turn into incivility and inappropriate conduct.

On November 21, 2016, I spoke at the Family Dispute Resolution Institute of Ontario (FDRIO) Conference on “As the Walls Come Down,” specifically focusing on the entrance of paralegals into the area of family law. In my paper, I proposed the following measures to assist the transition of paralegals into this expanded scope:

  • Limit the scope of paralegal family services to unbundled services, low-risk and non-contentious matters, or for annual adjustments of support or access schedules
  • Spell out the standard of competence for paralegals practicing family law
  • Amend Rules of Professional Conduct to include paralegals as a party to whom lawyers owe civility to
  • Harmonize legislation to include paralegals within the definition of “counsel” and “officers of the court”
  • Promote mentorship of paralegals entering family law by lawyers, in particular in the areas of advocacy and civility

The opposition to paralegals entering family law is not entirely without merit. There are legitimate concerns of ensuring that any new legal professionals operating in this area receive proper training and experience. One important case helps illustrate the problems that can emerge out of these concerns.

In Law Society of Upper Canada v Ludmer, the Law Society Hearing Panel reviewed the conduct of a family lawyer who had communicated with various parties “in a manner that was abusive, offensive or otherwise inconsistent with the proper tone of the professional communication from a lawyer,” contrary to 6.03(5). The basis for his zealous passion in this case was based on what he perceived to be parental alienation of the children in the case.

The Tribunal accepted the evidence of a retired judge, who believed the lawyer had failed to recognize the distinction between “wearing the hat of legal counsel and wearing the separate hat of an advocate for a cause.” This failure prevented him from being objective, and allowed him “to become a conduit for his clients’ angst and sometimes anger.”

In his second and unrelated discipline decision related to civility, released this year, the Tribunal

[15] Family law involves personal and intimate matters and the most vulnerable members of our society – children. The issues can lead clients and lawyers to feel passionately, particularly when we have our own histories. However, clients will not be well served if lawyers cannot work together on effective and proportionate dispute resolution and solutions to the issues. We must separate clients’ views from those of lawyers and recognize that, as lawyers, we only fully have one side of the story. What is more, clients will not be well served by personal incivility in contentious matters. After all, if lawyers are not civil to each other on a personal level, how can we expect spouses involved in a family breakup, the most stressful time of their lives, to do so? What are we modelling? The legal profession will fall in the public eye if lawyers act in an unprofessional and uncivil manner.

[16] Family lawyers, like others in a particular practice area, work together on different cases and often see each other again. That can help promote collegiality among a particular bar. On the other hand, when one case or series of cases gets heated, litigators need to remember to put aside the previous case and work together collegially. I hope that with these matters now behind everyone, you and your colleagues in the family law bar will keep that in mind and collectively take a fresh approach to your professional relationships going forward.

[emphasis added]

The public eye has long been on the area of family law. While all of us in the bar should promote competence of any new paralegals who may be entering family law, it is also important to model professionalism and civility to those who do.

At this time paralegals do not currently work with us routinely on different family law cases, or see each other again in the same practice in a manner that may promote collegiality. But they will soon, and it may be that our entire family justice system will fail if we do not exemplify those values of professionalism.

 

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