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Update: Paralegals call truce over law society motion

|Written By Michael McKiernan

An expected clash between family lawyers and paralegals at the Law Society of Upper Canada’s annual general meeting this week won’t be happening following the withdrawal of a controversial motion.

‘This isn’t just another sleepy AGM. What’s behind it is the future of the law society and the future of the legal profession,’ says James Morton.

A proposal on the agenda for the meeting would have asked the law society to report on the possibility of expanding paralegal practice to include “preparing family law documents, representing before the family court for certain matters, drafting incorporations, and drafting uncontested divorces,” a proposal that’s left family lawyers up in arms.

But now Marshall Yarmus, the paralegal pitching the motion, is withdrawing it. “We have been given the assurance that it is the desire of the paralegal standing committee to examine paralegal scope of practice prior to the legislated 2012 review of the Access to Justice Act, 2006,” Yarmus said Monday.

In announcing the withdrawal, Yarmus said getting the motion passed would have been difficult given the fact that there were so many more lawyers eligible to vote than paralegals. He noted as well that, if paralegals aren’t satisfied with the standing committee’s progress on the issue, they can launch the motion again next year.

“This motion has served its purpose,” said Yarmus. “It has obtained the much-needed attention of the media, lawyers, paralegals, and the law society to the need and desire for an alternative for the many people every day who attend family court unrepresented as they can not afford a lawyer yet they do not qualify for legal aid.”

The proposal had both lawyers and paralegals scrambling to gather enough supporters to pack the meeting and win the vote, which was to be decided by a simple count of hands on Wednesday with no proxies allowed.

Chris Surowiak, president of the Paralegal Society of Ontario, says his group supported the motion because it would have merely restored services many of its members performed before 2007 but lost when the LSUC began regulating paralegals.

“When family law was taken away from paralegals, it created a void for the public, and there were not a lot of lawyers ready to jump into that void,” he says.

“Many highly qualified practitioners have been prohibited from providing services in those areas. The public will benefit if they are reintroduced because they will have choice, and there will be more access to justice.”

Yarmus, a former vice president of the paralegal society, was planning to use the group’s own annual general meeting this past weekend to build support for it. He notes he still gets calls every week asking for family law services, mainly from people who don’t qualify for legal aid but can’t afford a lawyer.

“A huge proportion of people who appear in family court go unrepresented in court. Paralegals can fill the gap and not steal business away from lawyers. There’s enough people out there in the family court to go around.”

But that misses the point, according to Georgina Carson, chairwoman of the Ontario Bar Association’s family law section. She says the complexity of family law requires expertise only a lawyer can provide and suggests that’s precisely why the law society omitted it from areas of paralegal practice.

The OBA group had joined the Family Lawyers Association (FLA) in urging members to attend the law society meeting and vote down the motion. The FLA began a poster campaign in courthouses around the province urging lawyers to attend the meeting in person.

“Family law is not about filling out forms,” Carson says. “It’s about knowing the whole context of the law. Family law lawyers alone are qualified to steer families through the constantly evolving interplay between complex legislation, case law, and precedent to try and arrive at a workable family law solution.”

Carson also says the potential consequences of poor practice, especially when children are involved, are too serious to risk ceding any ground to paralegals in the area.

“People cannot be making life-altering decisions with incompetent - and I say that in the kindest way - but truly incompetent advisers. A six-month course in a college program is not going to give someone the background in all of the areas of the law that impact on family law decision-making and family law advice.”

Yarmus, however, says the law society could play a role in outlining which family matters are appropriate for paralegals to deal with. He points to an LSUC bylaw that limits paralegal representation in the criminal courts to summary convictions.

“There are some matters that are complicated, but I think the law society can evaluate it and set a guideline and say, ‘Beyond this step, you must go to a lawyer.’”

Yarmus says he decided to file the motion because the law society’s structure makes it difficult to raise the expansion issue in any other way.

“Right now, we have a paralegal standing committee, and the paralegals are a minority on their own committee. So they don’t have the power to force change in the law society. If we wait for the lawyers who control the law society to allow paralegals into these areas of practice, we could be looking at many years into the future.”

It’s not just family lawyers who are leery of paralegal expansion. James Morton, a past president of the OBA and currently head of the litigation group at Steinberg Morton Hope & Israel LLP, warns a successful motion could have paved the way for even greater scope of paralegal practice.

“The problem is there is a real danger of mission creep and that paralegals will have their jurisdiction expanded well beyond that which they are trained to deal with,” he says. “From my standpoint, the protection of the public says that the scope of paralegal practice has to be very precisely and narrowly defined.”

Morton acknowledges there may be a role for paralegals in family court to improve access to justice but says it’s important to approach the issue with extreme care.

“This isn’t just another sleepy AGM,” he says. “What’s behind it is the future of the law society and the future of the legal profession.

I don’t think it’s extreme to say that if paralegal practice expands materially, we could end up with a bifurcated bar. Paralegals will have one type of practice, and lawyers will have a different type of practice, which would be to the detriment of lawyers, paralegals, and the public.”

Morton believes much of the tension between paralegals and the law society stems from the grandfathering of paralegals already practising before regulation, many of whom found themselves having to halt their work in certain areas. He says the issue may dissipate as they work their way through the system, something that could take decades.

“The issues may be teething problems more than anything else but they are real issues, and I think lawyers have to recognize and address them because otherwise we’ll have paralegals doing things they shouldn’t be doing.”

Surowiak agrees the issue is one that needs consideration. But he reminds concerned lawyers the motion only asked the law society to look into possible expansion of paralegal practice.

“It’s just a report,” he says. “With open communication, it’ll be positive for the legal profession, and ultimately the public will benefit.”

  • Jeffrey G. Wyatt
    So after 2.5 years since my original comment what has been changed or even considered by the LSUC or the Paralegal Standing Committee in Family Law - NOTHING. Family Courts are backlogged even more, citizens of Ontario are denied justice in a timely manner and families and children suffer the brunt of a flawed if not broken system. How many paralegals are still in business after licencing - less than25% and I find that figure high.
    As long as Ontario`s legislature is dominated by lawyers this will continue and the tax paying citizens of Ontario suffer the consequences. The LSUC old boys network rolls on unhindered as a law degree somehow elevates the bearer to a level that no others can hope to attain.
    That is why in the very near future I am relocating to Alberta where paralegals are welcomed as a productive part of the legal process including family.
  • ashok
    Hello

    I endorse and agree with your( Renata,) opinions. In the society we have all kinds of people, some are affordable and some are trying very hard to manage family happiness and keep the job, you know contract jobs, seasonal jobs, & etc …are always have up and downs times, if he / she payee huge fees to the lawyer, in that case affordable become cannot afford. Very simple, we know that, he/she may add other expenses / dues to child support/ spousal support/ etc. Hence I request sincerely to lawyer to reduce fees depending on case to case. Otherwise qualified lawyers are extremely good in the complex legislation of family laws.
  • Shirley Sawyers
    I just completed the Paralegal Diploma Program and getting ready to write the Paralegal License Exam with
    the Law Society of Upper Canada. I agree that Family Law should be restricted to Lawyers and Paralegals only under the supervision of a Lawyer. To become a lawyer, the education and the articling requirements are more extensive. Family Law deals with peoples' lives, both on emotional and financial levels. If I ever required legal advice with a Family situation, I would be retaining a lawyer, not a Paralegal. As far as I am concerned the roll of the Paralegal should not be classified under the same umbrella as a Lawyer.
  • Jim
    Reply to Shirley Sawyers:
    I don't know where you were educated. I am currently finishing off a 2 yr law clerk program at a community college and continuing on for another yr in a post graduate paralegal program. It is an intensive 3 yrs of legal education.

    Students becoming lawyers spend a great deal more time studying the history of law, and other avenues they will never use. This explains their 4yr program. I have met a lot of these students, and can discuss in detail their curriculum.
    The study of family law is comparable in the least.

    Let us not compare students who managed to become paralegals through private so called colleges with students who attended a community college through the route mentioned above, they are far from the same.
  • Paula
    I too took a 2 year Law Clerk Program. It was extremely in depth and it made me quite knowledgeable in Family Law, so much so that I impress my boss, a lawyer with approximately 43 year experience, with how much I know, as well as, how resourceful I am when researching case law and legislation. I could have took the third year to become a Paralegal; however, Family Law was, and still is, my passion and I knew that I could not do Family Law as a Paralegal.

    I completely agree that the Paralegals coming out of those private colleges (i.e. CTS) would not, and could not, have possibly learned what you and I learned taking our Program. I also think that the Law Society should put a kibosh to these condensed Paralegal Programs, as they are not helpful to the student, or to the public!
  • Evan
    "Jim", Your comments speak volumes, but not in the way that you intend, I am sure. That you would characterize a law degree as a study in the "history of law" simply displays your lack of knowledge. Lawyers use the knowledge and skill acquired at law school every day. That you would also believe a two-year law clerk program combined with a one-year paralegal program equips you to do the job of a lawyer shows that you don't know what you don't know. Three years studying as a paralegal is not the equivalent of 3/4 of a lawyer's education and training. If you want to practice law, don't waste your time at community college. Go to law school and become a lawyer.
  • Renata
    Why is the only answer go to law school? Given the fees for law school, what segment of our society can even consider it? If only those who have money can afford law school, then what limited view of justice will we be coming from, a select group of the privileged who will have a distorted view of what justice is, a view which does not include those who cannot afford it, both on the practicing, as well as on the receiving end? Who will represent the poor? To my mind what needs to change, depending on your view, is for the lawyer support crowd - drop your fees to affordable fees! less than $100/hr. The LSUC should put a cap on lawyers fees, how about that? Expand legal aid to anyone who cannot afford lawyer fees, not just to the limited few who qualify OR allow Paralegals and others with legal training to take up the slack. Actually ADDRESS the concept enshrined in our laws of ACCESS TO JUSTICE. Don't just talk about it as some holy shrine of civilized culture but make it so.
  • Trevor
    Please take this reply with all the respect such passionate commentators deserve.

    Ms. Sawyers, your argument based on emotion and finance falls short and does harm to the body to which you may one day serve.

    Consider that there is ultimately no client that a paralegal will represent that is not somehow affected financially or emotionally, whether they suffer under the WSIB, Human Rights violation or something that sounds as simple as a summary conviction. It is unwise to consider these in a lesser light than the impact of family law on an individual.


    All,

    It seems, respectfully, that more data should be collected mindful that there are many people who could benefit from help, at least, with rules of civil procedure. As Ms. Sawyers mentioned, there are people suffering, children included, who could make use of services that lawyers, due to revenue concerns, are unwilling to provide, .

    Kindly,

    Trevor
  • Paralegals will provide a role inFamily Law

    Lynn
    Despite the previous post by Jeffery Wyatt, I do see Paralegals playing an important role for the public dealing with uncontested divorces, variance of support payments and custody revisions. The public needs assistance and Paralegals have the skill set and competence to service this public need.

    It surprises me that this individual likes to sit on the sideline, blame everyone else but himself and refuses to support the Paralegal profession because he believes family law will not be a part of a Paralegal's practice in his lifetime.

    As opposed to whining or complaining about the situation perhaps get involved with your peers and work towards the changes you want to see happen. These 30-40 people you make reference to would appreciate it as well.
  • A great thought but I doubt we will ever see posit

    Jeffrey G. Wyatt, Paralegal
    As a sole proprietor for 10 years of a paralegal practice that focused on Family Law matters for the individuals that did not qualify for legal aid but could not afford traditional legal services I can relate.

    I provided a competent, complete service that prepared clients with the means to represent themselves if required, while I took care of the details, in a manner that did not burden or hinder the court process. During the time of my practice 99% of clients were successful in their applications and no complaints were lodged about fees or services. I was more than aware when I was not qualified to provide service without input of the LSUC. If a matter took a turn I was able to refer clients to several lawyers that welcomed my cases as they knew my work and in turn these lawyers referred financially restricted clients to me to provide services.

    Mysteriously all my cases were settled in 6-8 months due to the fact I made it clear to clients what the laws stated and did not provide empty promises or skewed interpretation to the law or precedent. The only people dissatisfied with my work were opposing counsel that were beat by a lowly paralegal.

    After regulation my practice nose dived(forced to turn down $100K of work in 9 months) and was eventually closed and now I have been unemployed for a year due to being over qualified for most firm positions.

    My main point is that I know of 30-40 individuals now involved in the Family Courts that are spinning in circles due to self representation. One individual using a legal aid lawyer, on a family matter that should have been settled three years ago, the lawyer does not even show for appearances or return phone calls and complaints to the LSUC and legal aid have fallen on deaf ears. Unfortunately I am unable to assist any of these individuals, many of whom are seeking simple support or custody revisions, or uncontested divorces where children or property are not an issue or have been previously settled.

    There is more than enough need for paralegals in Family Law system and other areas, but in my life time I would be surprised if the LSUC will open up ANY further areas of practice to paralegals. Hence, why I refuse to be a member to the Paralegal Society of Ontario as they roll over like trained dogs on command of the LSUC.

    In closing, the Access to Justice Act only further restricts the working, middle to low income, individuals access to the courts and Family Law in particular. The LSUC will continue the old boys network as always and if you can't pay the lawyer's fee the public is on it's own.
  • Initiating forms

    John Beattie
    Surely the original initiating of family court forms for a custody matter, access, etc...........the INITIATING squares can be ticked without endangering the emotions of all concerned.
    Even then filing at the counter. A lawyer for actual hearing date, plus taking over all further activity on the file, etc.
    Knowledge for such matters I humbly suggest can come through decades of personal experience and observation of human nature, even trumping Law Books.
  • Laws

    Dinah
    Nice site, very informative. I like to read this.,it is very helpful in my part for my criminal law studies.
  • Self interest causing blind irrational responses

    Mike benoit
    The motion, as the article indicates, did its job of creating the atmosphere needed for open discussion about the scope of legal practice.
    The interesting points we need to look for and address here is the issues brought forth by both sides and as you do that we can see that the Lawyers and Paralegal are speaking to different issues and therefore will not easily come to any agreement. Lawyers are speaking to competence of paralegals in complex cases while paralegals seem to be asking for a review of permissible areas of family law that they have historically practiced in.

    The question is can those lawyers who practice family law cede those areas that are not, dare i say, as profitable as the more complex cases to paralegals without a lingering doubt of competence?

    while paralegals need to assure everyone involved that they are/can be competent in those areas so as not to bring Family Law into disrepute and be sure in general they are not taking on more then they can reasonably do with the academic qualifications currently required.

    Its a given that there will need to be an academic component to any solution suggested, I would only caution that slow and steady wins the race...

    should paralegals be permitted to practice in certain areas of Family Law? absolutely. Should lawyers (custodians of that area now) demand a high level of competency and integrity of the paralegals wanting to practice family law? absolutely!!!

    Should there loud and thunderous debate? absolutely!!! The public will gain so much more....
  • This is just a modest proposal

    Angela Browne
    Nowhere in this proposal is anybody demanding access for paralegals immediately in the family courts. It is giving the Law Society and all stakeholders an opportunity to review the question in the public interest, and if this appears to be a possibility, how to ensure that quality services can be delivered by paralegals trained in the family law, and what types of services can be delivered by them, as such. While the motion is withdrawn, I am pleased to see the publicity this issue generated, as this is something that should continue to occupy the realm of public debate.
  • Let Canibals eat each other

    RON
    The sad state of legal services in Canada is indeed a tragedy. Especially sad is the permanently creating third and fourth class(Para-legal, Legal Aid and Pro Bono) provision of legal services to the disadvantaged strata of society.

    The rule of law is the foundation of justice - lack of access to equal representation in trials will create a division in society of those have and those who don't have access to justice.

    It is an issue of concer. It is criminal to create Pro Bono and unconstitutional to allow Para legal in courts to substitute lawyers.

    Dear Legal Practitioners please rise and seek court orders to stay charges of all disadvantages people in every case represented by Para legal and free or sub-standard lawyers as they amount to unequal representation resulting in unfair trial (charter sec. 14 & 24). The case/trial should remain stayed till lawyers are appointed and payed by government in every canadian case (as prescribed by the constitution.

    Till then relax and let the canibals eat each other.
  • Paralegal Practitioner / Calgary

    Lawrence A. Oshanek
    Far too many people cannot afford legal help or even paralegal help. I have sat in too many courtrooms for far too many hours listening to a judge explain the most simple things, be those things the intent of the law or the need for proper process.

    Perhaps a full debate must take place for the sake of the waste of public resources and mine and everyone else's time with a mind to create more useful solutions.

    Perhaps, legal aid should hire some paralegals to fill a function for the growing class of the unrepresented.

    That idea should upset a few people!
  • The motion is worthy of support

    Garry J. Wise
    As I noted last week at Wise Law Blog (http://wiselaw.blogspot.com/2010/04/ontario-paralegals-and-family-court.html):

    While the paralegals' 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.

    The motion should be given very serious consideration.
  • just a lawyer

    Leonard Siegel
    The problem as I see it with respect to Family Law is that the Family Law Rules have not served the public's interest in expeditious and cost effective litigation- in fact the reverse is true and while most who practice in the area know it, no lawyers or justices care to change the Rules. The result is that Family Law costs per file have escalated to the breaking point for far too many litigants and we now have a substantial and growing class of unrepresented.
    In these circumstances it is difficult not to give credence to some of the points raised by the paralegals.
    The problem then becomes what limits can be placed on a paralegals involvement in other areas. In the absence of a proper study to be conducted with the involvement of the paralegals the entire issue of where to place limits and restrictions becomes arbitrary and self-serving for the profession.
    Please don't point to the work of the recently retired Mr Justice Cory who opined that paralegals could inter alia do a "simple will" since this legal oxymoron
    was quite properly the subject of derision. A committee properly represented by all players including representatives of the Bench must explore what paralegals can be entrusted to do for all the right reasons.
    And by the way, someone ought to give serious consideration to changing the Family Law Rules in a real hurry before the Public starts demanding it.
  • Lawyer

    Lauren Stringer
    If you can ever get any of the vested interests on the Rules Committee to ever admit that the FLR's are a fiasco (or at least the implementation of those rules) and do just the opposite of what they were meant to do, I'll give you a medal. It will NEVER happen.
  • Lawyer

    Joe Hoffer
    I hope the Motion passes and that a thoughtful review is undertaken. I agree that the public benefits when Paralegals are able to provide the largely administrative matters needed in relation to certain aspects of Family Law. Lawyers should use their expertise and skill for more complex substantive matters...and this applies to all areas of the law.

    WGrpH
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