Should paralegals do family law work?

Three years after the law society began regulating them, Ontario paralegals are trying to expand their power to represent people in family law cases, including divorce. But family lawyers are fighting back, saying paralegals are inadequately trained and should not mess with the lives of vulnerable Ontarians in a complex court system that can permanently alter parent-child relationships.

Mary Reilly, treasurer of the Family Lawyers Association of Ontario response is;

“When you’re dealing with women, children, property and support issues, these are not uncomplicated situations. Nor are child protection matters, when the state walks in and interferes with the parenting of your child.”

I agree with her at this point of her statement. These issues can be very complicated.

Her association urged its members to pack the Law Society of Upper Canada’s annual general meeting to defeat a motion brought forward by 11 paralegals as the first step toward expanding their territory to include family law.

Marshall Yarmus, a Toronto paralegal who was the driving force behind the motion, which was endorsed by three paralegal associations, said he tried to protect the livelihood of Ontario’s 2,863 licensed paralegals and “give them some power within the law society they don’t have now by bringing in a motion before the Law Society to expand the role of paralegals in the practice of law.” After consultation with members of the paralegal societies, he decided it would be best at this time to withdraw the motion as he felt that it wouldn’t get approval by the 40 thousand lawyers who would be against it. He advised this writer that the Paralegal Committee in the Law Society has promised that they will revisit this matter in 2012 when the five-year-mandate ends and the issue of being governed by the Law Society comes up for review.

Actually, it won’t be the Law Society that decides whether or not paralegals should practice in family law, it is the government of Ontario and the Ontario Legislature.

The motion called on the law society’s board of governors to examine the concept of allowing paralegals to prepare family law documents, represent clients in family court and draft uncontested divorces — and to report on why it recommends or opposes the idea.

Yarmus said he is merely asking for a return to the status quo, before the law society began licensing and regulating paralegals in 2007 and restricted their practices. Many paralegals worked in family courts prior to 2007 and have since lost their businesses. In the past, paralegals were permitted to represent clients in family court if the family court judge gave his or her approval. That all changed when paralegals became regulated by the Law Society of Upper Canada. The Attorney General then excised the law that previously permitted paralegals to represent clients in family courts as their agents.

Roy Thomas, the law society’s director of communications, said “The unauthorized practice of law, particularly in the delicate area of family law, poses a very serious risk to the public.”

To some degree, I can’t fault his concerns, especially when you consider just how complicated drafting up an agreement with respect to a couple’s assets can be. I studied family law at Humber College and learned how to calculate the equalization payments due to each of the separating parties and although I know how to do it, I would never have drawn up such a plan for a client when I was practicing family law. It is extremely complicated and a mistake could cost one the parties tens of thousands of dollars.

Yarmus said some paralegals who previously appeared in family court are now working for lawyers, preparing documents in family law cases. But the public, he contends, is paying the lawyer more than they would have paid the paralegal for the same service.

I drew up separation agreements for clients as a paralegal when the issues involved dealt with child support and visitation rights. Common sense and a willingness by the parties to be fair to each other simplified the agreements. I charged $400 to draft up such agreements where lawyers would have charged them thousands of dollars.

The regulation of paralegals grew out of a report to Ontario’s attorney general ten years ago by Peter Cory, a retired judge of the Supreme Court of Canada. Cory recommended that licensed paralegals be allowed to prepare papers for “simple, uncontested divorces,” draw up simple wills and handle some real estate transactions.

However the Family Lawyers Association maintains there is no such thing as a ‘simple divorce’. What a client might perceive as simple, it says, could involve pension, benefit, property and support issues that have a lasting effect on their life.

That’s true however, some divorces are very simple to draw up. If no children are involved and the parties agree not to seek support from one another or delve into their pensions, and the grounds for the divorce is merely separation for over one year, then such divorce documents are very simple to draw up. And if the support and visitation rights issues with respect to children are agreed upon (in a separation agreement) then the divorce papers can easily be drawn up by a paralegal who is trained in family law.

It’s ironic when you consider the fact that law clerks who graduate from a family law course conducted by the Institute of Law Clerks of Ontario draft up divorce documents and separation agreements for the lawyers that employ them.

Paralegals who take the same course as the law clerks do are just as qualified to draw up such documents as law clerks are. Of course, the law clerks will have their work supervised by the law firm that hires them whereas the paralegal is answerable only to his client. I would be remiss however if I didn’t mention that many paralegals who drew up such documents would have them vetted by a lawyer to make sure that the documents were drawn up properly.

Before I retired from the practice of law, I represented clients in family courts in which support and visitation rights were the issues to be dealt with. Some of the cases were extremely complex but having been trained in family law as a paralegal and having text books on the subject and having access to case law, I knew what I was doing and my clients were pleased with the outcome of their cases.

Why does the law Society really frown on the proposal that paralegals trained in family law should be able to represent clients in family courts and draw up separation agreements and divorce papers?

It isn’t because they can’t do the job properly. Many paralegals worked in the field of family law and were proficient in what they did. It all comes down to one basic issue----money. The lawyers were losing money to paralegals who were being called upon by clients who wanted the job done for less than what the lawyers would charge.
I was invited to appear before the Standing Committee on Justice Policy of the Ontario Legislature. Here are some excerpts from my address before the Committee I gave on September 6, 2006.

“For many years, there has been animosity between lawyers and paralegals in Ontario with respect to which areas of law paralegals can practice in. Charges were filed against paralegals by the law society, sometimes with success and other times without success. As a result, there has been confusion among the general public as to what paralegals can legally do, especially as it relates to the preparation of documents pertaining to wills, real estate, incorporations and divorces.

“The law society, the general public and paralegals alike had reason to be concerned. There still wasn't any form of legislation that could govern paralegals and assure the public that it would be protected from dishonest and/or incompetent lay counsel. It is trite to say that this concern is shared by the majority of the paralegals in Ontario. They too cringe when they hear or read about paralegals who have brought shame and disrespect to their profession. They too demand that legislation be implemented so that those practitioners in their profession who have shown themselves to be unworthy of the trust given to them by the public can be turfed out of the profession.

“On the website of the Attorney General of Ontario, there is an observation of what Mr. Justice Cory said in his report about paralegals. He said, in part: "There are incompetent and irresponsible individuals claiming to be paralegals. Their misconduct is disgraceful, their actions mislead the public and disrupt the proceedings of courts, boards and tribunals. However, it is also clear that there are able, conscientious and efficient paralegals who provide a needed service to the public in a number of areas."

“In support of the second sentence by Mr. Justice Cory, it should be said that a great number of paralegals have been trained in law by attending community colleges which offer courses in law and they and others subscribe to the Law Times and the Lawyers Weekly and have purchased annual digests and other books published annually, such as the Annotated Criminal Code, the Ontario Annual Practice, the Annotated Landlord and Tenant Laws of Ontario and the Annotated Ontario Family Law Practice, just to name a few. Many subscribe to Quicklaw, which gives them access to millions of court decisions. Those who haven't studied law in community colleges have successfully practiced law after having spent years learning how to do so the hard way, by virtually hands-on experience. Further, the vast majority of paralegals in this province have never been accused of any wrongdoings such as cheating their clients or anyone else for that matter.

“No one disputes that there is a place in our system of justice for competent and honest paralegals. They fill that void that is left by lawyers, whose fees are often more than their potential clients in need can pay or, alternatively, whom Ontario Legal Aid has turned down for one reason or another. It is disheartening to watch accused persons or parties to criminal, civil, family court and landlord and tenant matters, to name a few, represent themselves and bungle their way through their court and tribunal trials and hearings. They are oblivious to the old saw that a person who represents himself has a fool for a client.

“The question that comes to the fore is; why does the Law Society really want to embrace the paralegals, whom many lawyers have described in the past as rabble who are untrained, unsupervised, uninsured and irresponsible?

“Obviously, if the independent paralegals are governed by the Law Society, this will solve the lawyers' problem of the paralegals infringing on what they claim as the sole territory of lawyers: the preparation of simple wills, real estate documents, uncontested divorces and simple incorporations. The law society will simply order them not to do it, and if they refuse to obey the dictates of the Law Society, they'll boot them out of their profession. Didn't something like this happen in Austria just before the Second World War? Is this not annexation without bloodshed?

“Charging $500 to prepare a simple Small Claims Court claim and $1,000 to represent the client in that court is not going to entice potential clients into retaining a lawyer when the paralegal down the hall charges only $200 to prepare the pleadings and $500, at most, to attend the trial. If the lawyers wish to charge Cadillac fees to people who can only pay Chevy fees, they shouldn't be surprised at all that the next phone they hear ringing is that of the paralegal whose office is down the hall.

“People who suggest that there isn't any antipathy between lawyers and paralegals per se are the kind of people who subscribe to the Flat Earth News. This author would be less than honest, however, if he didn't admit that there are a great many lawyers in Ontario who recognize the worth of paralegals, and they often send potential clients who initially come to see them on minor matters to paralegals that they know, trust and respect in order to save their potential clients unnecessary expenses. These are the actions of lawyers who care about members of the public who need assistance but who can't pay the higher fees of a lawyer for assistance in dealing with minor legal problems.

“What better way to deal with the paralegal question can there be for lawyers in Ontario than to incorporate the independent paralegals under the control of the Law Society? If that happens, the paralegals will be within the grasp of their old adversary, with no space in which the paralegals can wiggle to improve their lot.

“What this all boils down to is not what is in the best interests of the government, the lawyers and the paralegals but what is in the best interests of those in need of legal assistance. There is enough need for legal assistance out there to keep all of us in the profession of law very busy without having to appear to the public as children fighting over scraps.” unquote

Lawyers per se believe that only they are qualified to represent people in courts or tribunals and prepare documents. That belief doesn’t pass muster when you consider that immigration consultants in Canada who are members in good standing of the Canadian Society of Immigration Consultants and who do extremely complicated immigration cases that can be for the most part, is more complicated than family law, are not lawyers. Further, Canadian banks use the services of non-lawyers to prepare wills and handle estate matters. Non lawyers also handle real estate matters.

As I said earlier in this article; the issue as far as lawyers are concerned, is not about the protection people in need of legal assistance, it is really about money.