Expanding Legal Services Options for Ontario Families

Introduction

Every day, more and more Ontarians are choosing to go to family court without legal help – either because they can’t afford a lawyer, or they believe they can manage on their own.

Unfortunately, the family justice system can be difficult to navigate without proper legal help, and many who choose to represent themselves struggle with the complex legal procedures involved. Sometimes, this lack of legal expertise can affect the outcome of a case.

Recently, efforts have been made to develop different ways for people to resolve their family law disputes outside of the courtroom, such as increased mediation services and online dispute resolution.

There is also a need to increase access to alternative and affordable ways to obtain qualified legal services. The challenge is to develop a regulatory framework that broadens access but still ensures the competence of legal service providers and the quality of service they provide.

Objectives of the Consultation

The Ministry of the Attorney General and the Law Society of Upper Canada are exploring whether the delivery of family legal services should be expanded to include people who are not lawyers, such as paralegals, law clerks and law students.

The Honourable Justice Annemarie E. Bonkalo has been appointed to lead a review that will:

1. Identify the legal services at different stages in a family law matter which, if provided by persons in addition to lawyers, could improve the family justice system by better enabling people to resolve their family law disputes.
2. Identify persons other than lawyers (e.g., paralegals, law clerks and/or law students) who may be capable of providing those family legal services with appropriate safeguards put in place (e.g., education, training).
3. Recommend procedures, mechanisms and/or safeguards (such as education, training, insurance, regulation and/or oversight) to ensure the quality of family legal services provided by alternate legal service providers.

Justice Bonkalo will also be holding focused discussions with key stakeholders. She will use the information collected during these discussions and this consultation to inform her recommendations to the Ontario government and the Law Society of Upper Canada.

Note: The scope of the review does not include child protection matters under the Child and Family Services Act.

Please read this consultation document and provide your feedback on the questions that follow.

Provision of legal services in family law

In Ontario, there is no specific definition of the "practice of law". Instead, the "provision of legal services" is defined in the Law Society Act (the “Act”) as follows:

1(5) For the purposes of this Act, a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.

Legal services can include:

• Giving a person advice with respect to their legal interests, rights or responsibilities
• Selecting, drafting, completing or revising a document that affects a person’s interests or rights
• Representing a person’s interests or rights before a court or tribunal
• Negotiating the legal interests, rights or responsibilities of a person.

The Act states that licensed lawyers can provide all types of legal services.

Licensed paralegals can provide only specific legal services described in the Law Society of Upper Canada’s By-Laws. These include giving advice, drafting documents, negotiating a person’s legal interests and representing a person in procedures taking place:

• in Small Claims Court
• under the Provincial Offences Act in the Ontario Court of Justice
• under the Criminal Code in a summary conviction court, where the potential sentence is six months or less imprisonment
• before a provincial or federal tribunal, including the Financial Services Commission of Ontario.

Some reports have identified that allowing paralegals to handle certain family law matters with or without the supervision of a lawyer deserves careful consideration. There may be other legal service providers, for example, law students or law clerks, who could also provide these services.

The Law Society’s Rules of Professional Conduct and By-Laws authorize an individual to perform certain legal tasks when directly supervised by a lawyer. The lawyer remains responsible for this work and must determine whether the individual is competent to perform the task.

In order to determine whether to permit paralegals or others to provide legal services in family law without the supervision of a lawyer or, alternatively, to promote the provision of such services under the supervision of a lawyer, the consultation seeks to find out about what kinds of legal services in family law are currently being provided in everyday practice.

Questions:

1. What legal services are sought and provided in each type of family law case (e.g. divorce, custody and access), from beginning to end?
2. What family legal services are currently provided by a person other than a lawyer (e.g. paralegals, law students, law clerks), whether independently or under the supervision of a lawyer?
3. What family legal services are covered by legal aid? What family legal services are provided by duty counsel?
4. Which legal service offerings (e.g. conducting legal research, preparing correspondence, appearing in court, etc.) could improve the family justice system if they were more widely available?

Regulations and standards

The Law Society sets the standards of learning, competence and professional conduct, and provides for discipline of paralegals, to help ensure that paralegals are appropriately trained. Paralegals must also carry professional liability insurance.

If paralegals were allowed to provide family legal services, their education and training would need to be carefully reviewed to help ensure they are competent to provide these services.

Two reports delivered to the Attorney General on paralegal regulation^[i] explore the option of establishing sub-classes of licences for specialized practice areas. For example, to become licensed to practise in family law, paralegals would have to complete additional training, which could include examinations and/or apprenticeship requirements.

Creating a specialized family law area is one way to expand the scope of practice for those paralegals who complete additional education and/or training.

Additionally, Legal Aid Ontario provides a range of legal services for low-income individuals, including:

• duty counsel services for people who come to family court without a lawyer
• a certificate program allowing low-income clients to retain a private lawyer.

Only lawyers are eligible to provide legal services in both the duty counsel services and the certificate program.

Questions:

5. If an appropriate framework is put in place, should persons other than lawyers, such as paralegals, be permitted to provide legal services in certain family law matters?
6. If yes:
   • which types of legal services (e.g. interviewing a client, preparing certain documents)?
   • in which types of family law matters (e.g. divorce, custody and access)?
   • with what safeguards (e.g. education, training, insurance, regulation and/or oversight)?
7. Should other people as well as lawyers provide legal aid services? What role could these people play?
8. Do you think there are certain types of family law cases or issues that would not be suitable for persons other than lawyers to provide?

Other jurisdictions

In British Columbia (“BC”), paralegals are not licensed to practice independently and must be supervised by a lawyer. Since July 2012, under the Code of Professional Conduct for BC, designated paralegals have been allowed to give legal advice and make limited appearances in court, if permitted by the court.

In BC, a “designated paralegal” is a paralegal who, in the opinion of the supervising lawyer, has the skills and experience necessary to give the legal advice or representation required in a given situation.

In January 2013, the Law Society of BC, the BC Supreme Court and the BC Provincial Court launched a two-year pilot project giving designated paralegals a limited right of appearance in court. The goal was to identify whether lawyer-supervised paralegals were able to perform certain procedural applications in court in an efficient and competent manner. The pilot project focused on family law proceedings, with an emphasis on non-contentious procedural matters. The pilot project at the BC Supreme Court ended in December 2014; the pilot project at the BC Provincial Court was extended until October 2015.

In 2012, the Washington Supreme Court adopted a new rule to allow Limited License Legal Technicians (LLLTs) to be licensed to assist clients in certain limited family legal matters in family law, not including representing clients in court or in negotiations.

Formal evaluations of the BC pilot project and Washington’s LLLTs have not been publicly posted.

Question:

9. Are there any promising models in other jurisdictions in Canada or abroad that Ontario should consider, with respect to the role of family law legal service providers, other than lawyers?

Submissions

Thank you for taking the time to review this proposal and answer the questions.

Please provide your comments no later than April 30, 2016.

Both electronic and hard copy submissions will be accepted.

Electronic submissions and any questions about the collection of this information, or any other aspect of the review, may be sent by email to FamilyLegalServicesReview@ontario.ca. Please use the subject line Family Legal Services Review so we can track your comments.

Written submissions may be mailed or faxed to:

Family Legal Services Review
Ministry of the Attorney General
720 Bay Street, 7^th Floor
Toronto, ON
M7A 2S9

Fax: (416) 326-4289

Questions/Privacy Statement

Please note that unless agreed otherwise by the Ministry of the Attorney General, all responses received from organizations in response to this consultation will be considered public information and may be used and disclosed by the ministry to promote transparency and to assist in evaluating and revising the proposal. This may involve disclosing any response received to other interested parties.

An individual who provides a response and who indicates an affiliation with an organization will be considered to have submitted the response on behalf of that organization.

Responses received from individuals who do not indicate an affiliation with an organization will not be considered public information. Responses from individuals may be used and disclosed by the ministry to promote transparency and assist in evaluating and revising the proposal. Any personal information such as an individual's name and contact will be handled in accordance with the Freedom of Information and Protection of Privacy Act and will not be disclosed by the ministry except in accordance with that Act or as may otherwise be required by law.

If you have any questions about the collection of this information or about any other aspect of the review, please contact: FamilyLegalServicesReview@ontario.ca

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