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Family law paralegals: Finding the right role | Nicholas Bala

Thursday, August 13, 2020 @ 11:00 AM | By Nicholas Bala

Nicholas Bala %>
Nicholas Bala
The growing number of self-represented litigants in family law cases is a pressing concern in many countries, resulting in a wide range of responses, including the recent Consultation Paper of the Law Society of Ontario, proposing a role for paralegals in family cases. There is an obvious attraction to having lower cost services from paralegals but there are significant concerns with the proposals for Family Legal Services Providers (FLSPs) — licensed paralegals who will take an additional six months of education plus a three-month placement, and then be licensed to practise in family cases that do not involve more complex economic issues. The hope is that paralegals will handle cases for middle-income clients who at present are unrepresented.

Although not addressed in it, the paper raises fundamental questions about what types of legal services require the education, training and judgment of lawyers. Licensed paralegals can effectively handle cases that have a defined scope and predictable path, such as landlord-tenant matters. Cases that involve complex, interrelated issues, an unpredictable nature and potentially profound impacts should be handled by lawyers.

It is not just discrete legal issues that need to be identified and assigned to a category of professional, but also their inter-relationship that needs to be considered. While many family law cases can be addressed in a relatively mechanical way, many cannot, and it is often impossible to know how a case will evolve based on initial interviews with one party.  

The paper also fails to address the critical issue of the relationship between FLSPs and family lawyers. This relationship will be essential — both to allow for placements, a key educational expectation for FLSPs, and to protect clients.

Proponents of paralegals in family cases use medical analogies. There is an important role for midwives, and they can deliver babies without a doctor present, but they consult with more qualified health-care professionals over the course of a pregnancy and have backup available, especially in high-risk situations. Subject matter limits are necessary as a clear “outer boundary” for FLSPs, but they are not sufficient.

Each FLSP should have a relationship with one or more experienced family lawyers who can provide consultation and take over a file if needed. While the FLSP and lawyer could have a partnership or employment relationship, they could also be independent professionals, with a relationship for an individual case (or more likely a series of cases).

If independent, the FLSP could, within the defined limits, resolve the case alone if court proceedings are not required, with the FLSP having sole professional responsibility. If, however, court appearances are involved, the FLSP should be required to consult with the lawyer; the lawyer would be able to assume responsibility if the case becomes more contentious or complex.

The 2016 Bonkalo Report (or Family Legal Services Review) recommended a role for qualified non-lawyer professionals in family court. Allowing supervised law students and law clerks, as well as FLSPs, to appear on defined matters in family court can improve efficiency and reduce costs. These might, for example, include procedural motions, support variation and enforcement. The Consultation Paper addresses the role of FLSPs in court but does not mention the important role of other students and clerks in improving access to family justice.

The paper offers a detailed list of proposed areas of subject competence for the FLSP but lacks nuance, as it is expected that either an FLSP can deal with the issue or cannot. While the economic issues within FLSP competence are governed by relatively clear legal rules, the paper also proposes that an FLSP should be able to handle parenting issues.

In many cases parents can make their own plans about their children without professional involvement or can resolve their disputes using mediation. In such cases, it may well be appropriate to have a FLSP prepare an agreement or consent court order for parenting, and provide representation for child support and other economic issues.

However, if there is a dispute over parenting, which will often intersect with economic issues, an FLSP should not be acting without close lawyer supervision, or the case should be transferred to a lawyer. If there are ongoing domestic violence or abuse issues, which will often be inter-related with economic and parenting issues, representation by an FLSP will not be sufficient to protect victims or their children.

Precluding representation by an FLSP in cases involving domestic violence or parenting disputes may result in some litigants being self-represented rather than paying for lawyer. In such cases, the FLSP would flag issues for concern for the court and, as a present, the judge would have to resolve the matter, protecting the vulnerable as best possible.

Any program to have FLSPs must be monitored, evaluated and modified as appropriate. One central issue will be whether use of paralegals actually provides less expensive and improved access to family justice. No other jurisdiction has undertaken this type of reform, so it there will be great interest elsewhere if Ontario adopts this approach.

Nicholas Bala is a law professor at Queen’s University.

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