Is there a role for paralegals in Ontario’s family courts?

In 2016, at the request of Ontario’s Attorney General Yasir Naqvi and the Treasurer of the Law Society of Upper Canada Paul Schabas, Justice Annenarie Bonkalo undertook a review of family law services in the province. Her report made a number of recommendations, the most controversial of which related to the licensing of paralegals to provide some family court services.

(Ontario, the only province to licence and regulate paralegals, first did so in 2017, bringing paralegals under the governance of the Law Society of Upper Canada. Now, more than 3,000 paralegals are licensed and insured to provide services to clients in traffic and small claims court, tribunal (including some immigration and refugee) hearings and with minor criminal matters. To become licensed, paralegals must pass the paralegal licencing examination and be of good character.)

Not without opposition

There has been opposition – much of it from lawyers’ professional associations – to the increasing professionalization and scope of practice of paralegals, so it was not surprising when there was resistance to Justice Bonkalo’s recommendations about paralegals and family court.

Nonetheless, the Law Society of Upper Canada, on December 1, 2017, as part of its commitment to improving access to justice for Ontario families, approved in principle an action plan to establish a special licence for paralegals and others with appropriate training to offer some family law legal services.

While the details of what this will look like are not yet known, it is likely that paralegals wishing to provide family law legal services will be required to undertake additional education.

The scope of legal services that a paralegal can provide in the family law context has also not yet been determined.

Unique concerns for violence survivors

This is an issue of considerable concern to those of us who support women fleeing abusive relationships. In May 2017, Luke’s Place and the Barbra Schlifer Commemorative Clinic made a joint submission commenting on the Bonkalo report, in which we recommended a cautious approach to licensing paralegals to provide family law legal services. Our concerns were focused on the need for adequate training about violence against women and the inherent complexity in cases where one party is using the process to bully, intimidate and harass his former partner.

More recently, we followed up on our May submission with a letter to the Attorney General, summarizing our position and concerns:

“We do not oppose paralegals playing a role in family law cases, from coaching and document preparation up to and including representation in the courtroom. We do note the following concerns:

  • Women fleeing abusive relationships need full legal representation, regardless of their financial status. We do not want to see increased funding for family law certificates from Legal Aid Ontario sidetracked by implementing a role for paralegals in family court. While there is a place for paralegals in family court, this must not be used as a way to mask the need for greater resourcing for full representation by a lawyer in family violence cases

  • We are not convinced that creating a role for paralegals will address the financial barriers that many women face with respect to hiring a lawyer. Women who can’t pay for a lawyer may well also not be able to afford a paralegal.

  • We are impressed with the family law training proposed by the Ontario Paralegal Association. We strongly urge you to make the inclusion of substantive training about domestic violence and power imbalances a mandatory component of that training and to require the OPA to work closely with experts like us in the design and delivery of that component.”

We will continue to raise our voices to ensure that women fleeing abuse and their children receive the best possible family law legal services, whether those services are provided by a lawyer, a paralegal or another appropriate professional.

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