Will divorce lawyers be replaced with licensed paralegals? | Steve Benmor

Steve Benmor

When the province of Ontario and the Law Society of Ontario appointed former Chief Justice Annemarie Bonkalo on Feb. 9, 2016, to study the challenges faced by separating spouses who required family law help, she found that 57 per cent of Ontarians could not afford lawyers and therefore had no legal representation in family court.

This was commonly known as an “access to justice” crisis. The people of Ontario should be able to have equal and easy access to legal representation, just the same as their access to education, health care and police services.

However, unlike those other social services, legal representation is provided by private sector lawyers who charge an hourly rate for family law services. With rates ranging from $200 per hour to $600 per hour, Ontarians earning minimum wage would have to work between 20 and 40 hours to be able to afford one hour of help from a divorce lawyer. With the unknown number of hours needed to resolve a divorce, people very quickly run out of money and cannot afford to have a lawyer assist them with their divorce.

Many people who started with a lawyer could no longer afford to continue with them and become self-represented. The family courts have become overwhelmed with the disproportionately large number of litigants who are appearing in front of judges without a lawyer. Worse than that, litigants’ court forms were poorly completed, deficient and, in some cases, prejudicial to their own legal interests.

This has become the beginning of the end of lawyers’ monopoly on family law services. Similar crises were experienced all over the world including England, Australia and the United States. In these countries, private businesses sprung up to service the thousands of people who required help but could not afford a lawyer. Websites, apps and even storefronts opened that provide assistance to separating spouses — by non-lawyers.

What has occurred throughout the world is now happening in Ontario. The Bonkalo report was a critical step forward for licensed paralegals to be permitted to offer family law services in competition with divorce lawyers. Justice Bonkalo’s final report included a recommendation to create a special licence to allow paralegals to provide certain types of family legal services.

In response to these recommendations, the Ministry of the Attorney General and the law society developed an action plan released in 2017. This development was made simpler because the law society regulates both lawyers and paralegals. Following the Bonkalo report, the law society approved the creation of a special licence for paralegals serving spouses in family court, completing their forms and advising them on their legal rights.

While the law society is working on educational, training and competency requirements for such paralegals, lawyer groups continue to reject and oppose this development. The main objection stems from a concern for consumer protection. At the same time, paralegals are taking this opportunity very seriously. They see this as an opportunity to fill a void in the field of legal services.

In this respect, the paralegal community cannot be held responsible for the access to justice crisis, nor can they be faulted for stepping up to fill that gap. With the necessary education, training and regulation by the law society, it is likely that paralegals will be serving Ontarians in desperate need of legal services who cannot otherwise afford lawyers.

However, lawyer groups raise valid concerns. How can a non-lawyer represent a person in court and protect critical legal interests such as custody of children, support and property rights? How can someone without a three-year law school degree, without an undergraduate degree, without articles of clerkship and without years of continuing professional education, provide competent legal advice to a parent regarding their custodial rights?

Will the new requirements for training and licensure be sufficient to enable a paralegal to be competent? Will whatever limits that will be imposed on paralegals eventually be expanded to include a growing set of powers? How will consumers be able to distinguish between the different categories of service providers? Will this not simply be a race to the lowest price?

These are all questions that will be answered by the consumer public, government policy lawyers, academics and social scientists in the years to come. It may be that we are replacing the access to justice crisis with another set of crises.

Time will tell whether this development will constitute a solution that is acceptable to Ontarians or if the province will need to reconsider and roll back this development.

Steve Benmor of Benmor Family Law Group is certified as a specialist in family law and is the founding chair of the elder law section of the Ontario Bar Association. E-mail him at steve@benmor.com.

Illustration by Chris Yates/Law360

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