Skip to content

LSUC launches paralegal review

|Written By Michael McKiernan

Family lawyers are concerned after the Law Society of Upper Canada revealed it would use a decade-old report that backed paralegal calls to practise in that area as the basis for a promised review of the scope of their practice.

Former Supreme Court justice Peter Cory’s paralegal report is ‘the only public analysis that exists with respect to the issue,’ says Malcolm Heins.

Treasurer Laurie Pawlitza told Convocation on Feb. 24 that the activities identified by former Supreme Court justice Peter Cory in his 2000 report on regulating paralegal practice in Ontario would form the starting point of a review promised at last year’s annual general meeting.

The report, prepared for then-attorney general Jim Flaherty, recommended that paralegals be allowed to practise in a number of realms from which they’ve since been barred when the law society began regulating them in 2007.

Cory said paralegals should be able to act in simple, uncontested divorce proceedings and suggested Legal Aid Ontario should fund them to act in a role similar to duty counsel in family court.

Cory also recommended that paralegals be able to draw up simple wills in certain circumstances and that they could act for vendors in real estate deals when the residence was subject to no more than one mortgage.

In addition, he said paralegals should be allowed to appear in court on appeal from a decision in a forum in which they were able to act, such as the Small Claims Court and the Ontario Court of Justice for provincial offences and administrative tribunals.

Tom Dart, former chairman of the Ontario Bar Association’s family law section, says he’d be uncomfortable with allowing paralegals to practise in family court without a mechanism for verifying their qualifications.

“I would be very concerned about just opening it up broadly and saying you can do whatever you want because you’re a paralegal.

That would be extremely dangerous for the public because there would be a tendency that people would do things when they don’t know what they’re doing,” Dart says, noting even uncontested divorces can involve complex issues.

“Family law is unfortunately a complex area. It’s not that simple. I wish it was but it isn’t. There are just too many issues that can crop up.”

Marshall Yarmus, the paralegal whose motion at the annual general meeting last year sparked the commitment to a review, says Cory’s report is a “good starting point.”

“In terms of family law, we’re looking for things beyond what he suggested because paralegals used to be allowed to make appearances in the family court for certain matters,” he says.

“But at least it also addresses other issues like wills, real estate, and other areas of law where paralegals are not currently allowed to practise and [that] he recommended.”

Chris Surowiak, president of the Paralegal Society of Ontario, welcomes the law society’s action on the scope of paralegal practice.

“The public needs assistance within many aspects involving family law and the public can only benefit in using the professional services of a paralegal in this area,” he says. “Expanding our scope of practice can be a win-win for lawyers, paralegals, and ultimately the public.”

But Cynthia Mancia, co-chairwoman of the Family Lawyers Association, isn’t so sure.

“The biggest underlying theme of justice Cory’s [report] was access to justice, and I think it’s a mistake to equate expanding the use of paralegals as an answer to the existing well-documented access-to-justice [issues] that exist,” she says.

“There is a perception out there that paralegals can provide the same services that lawyers provide but more cheaply. The fear family lawyers have is that that perception isn’t grounded in reality.”

Pawlitza moved immediately to assuage fears that Cory’s conclusions would affect the law society’s own decisions as she announced his report as the starting point. “I want to stress that by using these activities as the starting point, we’re not predetermining any part of the analysis,” she told Convocation.

Yarmus, a former vice president of the paralegal society, tabled a motion last year that asked the LSUC to report on the possibility of expanding paralegal practice into the realm of family law, a move that sparked an uproar among family lawyers who began amassing support to vote the motion down.

The clash fizzled when Yarmus withdrew his motion on the understanding that the law society would study the scope of paralegal practice.

“I’d still like to see something approved by Convocation, not just the opinion of the treasurer,” he says. “I’ve been waiting for several years for the law society to finally take a view of paralegal areas of practice.”

Yarmus would like to see the LSUC set education standards for family law so that paralegals who were working in the field before regulation can get back into business.

“I’ve been after them for quite a while to figure out what education standard is required for paralegals to do family law work. I want a high standard of education to make sure paralegals are competent to do the work that they undertake.”

But Mancia, who’s unconvinced that paralegals could ever achieve the required level of expertise, believes including family law in their scope of practice risks creating a two-tier family justice system. “There are a large number of statutes that a family law lawyer needs to be familiar with,” she says.

“And then there is the interplay of those statutes together with common law and then the rules of practice. It’s far too complex an area to have a paralegal do an extra three months or six months or even a one-year course and then be qualified to practise family law.”

For his part, Dart says many family lawyers are already working hard to decrease costs for clients often with paralegals at the heart of those strategies.

“Most law firms have paralegals on staff, and we supervise them constantly and we allocate specific roles to them at much lower rates than ours. They do work they’re capable of, and it’s delegated and supervised appropriately.”

But for Yarmus, that approach is too restrictive. “As long as the law society sets a high bar, paralegals should be able to accomplish anything that they allow them to do,” he says.

He’s confident the review will end with paralegals practising in more areas of law. “As long as the law society does an unbiased, proper review where they actually ask the public what they want and they ask the people who can’t afford a lawyer the types of services they would like to see a paralegal provide, I believe it will widen the scope of practice,” he says.

Law society CEO Malcolm Heins says Cory’s report was the logical place to start. “It’s the only public analysis that exists with respect to the issue.”

Over the next month, LSUC staff will consult with key players in the areas identified to see whether the access-to-justice issues Cory found still exist.

“We’ll either be revalidating Cory’s views or in fact determining that those services he identified maybe aren’t relevant anymore over 10 years later,” Heins says.

Heins hopes to have a report before Convocation in the fall to then put it out for a wider public consultation.


For more on this see, see "Paralegals call truce over law society motion."

 

  • Andrew Williams
    From what I am observing and at my standpoint, the entire regulation of para-legals is a revolving door. There is nobody at the Law Society representing para-legals and right now there is the Provincial Offenses Court, where anyone before them will receive a do-it-yourself handbook.

    It's regulated in its capacity, it's duty, and most certainly in its duration and number of licensees. The other regulation is the complaints process which will cause most para-legals to discount their public representations in fear of refund seeking personal clients.

    It is definately not a career as it is portrayed. I find it a hobby.
  • Philip Okelo
    As far as I am concerned, there is no area of law that paralegals have been trained in that lawyers are better than them.

    Family Law is the area paralegals would have been allowed to practice in the first place after LSUC started regulating paralegals in 2007. In the school that I graduated, we studied a full volume of 514 page of Family law, practice and procedure.

    To me, anybody who passed through this book, I would consider that person to be an expert in family law including paralegals.

    It is about time paralegals are allowed to practice in this area while disregarding the fear mongers campaign of paralegals incompetence in the area. They are for God's sake, over qualified in the area.
  • Family Law and other Legal Files

    Angela Browne
    Anybody can say a case is complicated, and beyond the realm of somebody when they don't know that. Paralegals currently do handle a number of cases that on the surface can seemed to be complicated, such as many provincial offences related cases, regulatory offences, summary criminal code offences, small claims court (which involves innumerable statutes), etc., and we have been entrusted to do these cases under our licenses.

    To make a bold statement that only lawyers are capable of handling family law, or many of these other types of files identified by Cory, is not objectively looking at the facts. Let's look at an extreme example. For example, any lawyer in good standing can get involved with a murder case, for example, even if they mostly did real estate and civil litigation work, and did not focus on criminal law and procedure in law school. Are all lawyers trained and certified to handle serious criminal code cases? Of course not. Many lawyers aren't interested in criminal cases, and many have chosen to focus in other areas in their legal training. Yet any one of them can technically begin a criminal law practice ...

    This is the same thing with family law. I have taken several courses in family law, and yes, I understand a number of issues have to be considered. But it seems a lawyer that focused in other areas prior to their call, can now decide after ten years of doing real estate, to turn to family law without question ... do they really have any more expertise than a paralegal with training in this area?

    In many ways, this is why they call it a practice ... we train, keep up in our knowledge and over time, become more experienced. This not only happens with lawyers, but with paralegals as well.
  • Family Law

    Barbara Adamson
    It has been my experience that the amount of true family law education most lawyers receive is usually a one semeter course. Not exactly a huge amount of education. I have taken the infamous family law course while in school. It was intense, complete and we were well versed with all the appropriate statutes by the time our education was complete. Now however, the school education outlines are sadly lacking in that intense instruction. The Law Society has to keep in mind that none of their legal students took anymore family law than we did and its not rocket science. All lawyers are allowed to practice family law as long as they have written the bar exam. However, very few actually made family law their majors in school. If a particular course is required to continue practicing family law I know that paralegals would not be adversed to completing those courses and the general public would benefit enormously. Paralegals are not without skills and knowledge. They are not afraid of challenges and not afraid to expand their knowledge base. They are more than capable of doing the job and have the desire to do the job.
    We have flaws in every area of professionalism. No one area can claim perfection. We all work hard and do our best, Lawyers and paralegals alike.
  • Lack of representation for low-middle income earne

    J -Legal
    Isn't it true that Family Law is not a mandatory course in Law school and that there are a lot of lawyers who never took the course, but had to prove competence in this area in order to practice it? Does this not mean that a Paralegal could possibly show competence without having 1-2 years of formal education in Family Law which as stated before even a lot of lawyers don't have?
    There are both competent and incompetent lawyers out there too. Why not let the Paralegals who may be very competent have the opportunity to prove themselves. I know a great many people who lose their children based on the fact that they cannot afford a lawyer, legal aid refused for a technicality and they don’t hold the knowledge necessary to represent themselves. Should those people not have the opportunity to be represented by someone they can afford? They have nothing to lose by trying a paralegal considering they lost when trying to do it on their own. Some kind of representation is better than no representation at all and there are many many people in that boat.
  • Could you be any more condescending?

    a paranonymous
    Stop mincing words, this is about market protectionism. As much as not ALL lawyers should practice family law, I don't suspect that ALL paralegals would offer those services either. Bring some truth to the discussion, not a general fear of inequality based on an argument of academics.
  • monica
    agreed 100%. and let me tell u that what a paralegal studies in 2 years (i have been a paralegal, now a lawyer) is absolutly similar with what a lawyer studies but more in detail. for example, a lawyer studies from the beggining of any form of law existent for hundred of years of years and all the teoreticians and their life for like 2years. it never helped me in the field , instead in 2 years of paralegal studies we avoided that crap and study straight the subjects. i dont say that this is the single difference its just lawyers are afraid of loosing money, and i am saying that myself:))
  • what counts as complicated?

    Brian
    Dart says: “Family law is unfortunately a complex area. It’s not that simple. I wish it was but it isn’t." Dart's assertion that this area is too complicated for paralegals begs one to ask - what, specifically, does he count as being too complicated. Not long ago Dart et al were attributing Gregory Carter's unchallenged, unqualified "expert" testimony to it being a highly complicated task to check the qualifications of opposing experts. But the fact is that a two minute phone call to the College of Psychologists would have been enough to prevent these child custody cases from being tainted with the opinions of Carter - a bogus expert. Or, a family law lawyer could have gone to the CPO website - clicked member search - entered "Gregory Carter" - and up would have popped Carter's clearly posted practice restrictions. How complicated is that? Since any layperson can do this - surely a paralegal is capable of this "complicated" task? My point is this: Dart et al appear to be exaggerating, for whatever motive, the complexity of checking the qualifications of those who do child custody assessments. To the extent this is so - the self-serving thesis that family law is too complicated for paralegals will only get traction if valid examples of these "complicated" tasks are presented. Hopefully, checking the qualifications of bogus "experts" (the likes of Gregory Carter) won't be one of them.
cover image

DIGITAL EDITION

Subscribers get early and easy access to Law Times.

Law Times Poll


The Law Society of Upper Canada’s governing body has approved a proposal to create a new licence for paralegals that would train them in some aspects of family law such as form completion, uncontested divorces and motions to change. Do you agree with this move?
RESULTS ❯