Can Paralegals Practice Family Law in Ontario?
Those going through a divorce and making an appearance in court should hire a divorce lawyer Toronto — or at least be coached by one. Suppose one party doesn’t have a lawyer. In that case, they risk delaying their case, agreeing to something that’s not in their best interest or even being taken advantage of by a party who has representation.
According to a CBC story, more than half of the family law litigants in Canadian courts self-represent. In Toronto, that figure is closer to 80 percent. It’s become so prevalent in the legal system that provinces offer
guidance for self-representing litigants. The Ontario Court of Justice offers a guide for family law litigants, as does the Attorney General. In our opinion, self-representing litigants are wonderful guides, but they deal with procedure, not substantive law, and a person not familiar with the courts could easily get lost. In addition, there are so many variations based on your personal situation and goals. Hiring a lawyer, even to coach you, is always an advantage.
On top of that, there are limits to coaching, as well. While it’s helpful in the lower courts in simple matters, complicated cases require an experienced lawyer. Although cost is the main reason that people go it alone, there are other reasons – some people believe it’s easy to prepare and present their case in court, and some don’t take the process seriously.
However, there are consequences when it comes to representing yourself. Lack of knowledge in both procedural and substantive law could hurt a self-represented litigant. You’re going to take a long time to figure things out, and whether it’s intentional or not, the other party could have an unfair advantage over you. The lawyer for the other party is not obligated to assist the self-representing party, and that could make them vulnerable in the process. There seems to be more skepticism from the party who is representing themselves because they often question every single word in a proposal assuming there’s a trick behind it. Plus, it can be more expensive to represent oneself.
We once worked with a client who at first believed his case was simple and represented himself in a motion. It cost the self-litigant $6,000, and he lost over a matter that counsel should have easily handled. In the end, our Simple Divorce lawyers estimate the venture cost about $15,000 before the litigant returned to him as a client.
It seemed simple, but there were issues, and he didn’t know how to handle them. For example, judges are not necessarily lenient with people who represent themselves. It also creates stress on the already overburdened
legal system as self-litigants take longer to deal with matters they know little or nothing about.
There are two possible interpretations when someone delays — that it’s on purpose for strategic reasons or that they don’t know what they’re doing. Usually, I give self-rep parties the benefit of the doubt, but there is a limit. And there’s an unintended consequence of legal fees being added because the lawyer is responding and dealing with the self-litigant’s lack of knowledge and suspicion behind every single letter being exchanged.
There is a strong possibility the self-represented party is thinking a lawyer is out to get them or trying to trick them, where in fact, we have to represent our client’s interest, meaning we have to be strategic, and make sure to maximize our client’s rights and position.
Knowing this, the self-represented party is going to be difficult with a lawyer. Even with simple issues that would be dealt with as routine between opposing lawyers, the opposing party will question lawyers on everything they do.
As lawyers, we have two choices, explain to them in writing, which is very costly to our client, or stay quiet. Sadly, there’s a consequence because our client has to pay us to deal with every single email, letter or phone call to their ex-spouse who doesn’t have a lawyer. The relationship between splitting spouses often deteriorates as a result.
We support the changes proposed by the Law Society of Ontario and the province to expand the use of paralegals in family law matters in lower courts. “The rising number of unrepresented litigants can be addressed more immediately and effectively by considering ways to expand the provision of legal services,” Justice Annemarie E. Bonkalo wrote in her report on family legal services.
In our opinion, adding paralegals to family law matters in the lower courts is “going to help greatly.”, however, they might need to handle less complex family matters and here is why.
Why Paralegals Should Handle Less Complex Family Matters
Allowing paralegals to take on simple divorce and custody cases is a smart way to reduce pressure on the family courts. The cost of hiring a lawyer is often too high for lower–income individuals who don’t qualify for legal aid, leaving a gap that can result in people representing themselves in court.
We agree there is a need that isn’t being fulfilled because of the cost of certain services. However, the concern is definitely valid that if we don’t give paralegals some power to practice family law, the influx of self-represented litigants is only going to grow. We’ve seen many less–complex cases that could be handled by a paralegal trained in family law. For example, short marriages involving couples who do not own a home or have children wouldn’t be too difficult for a paralegal.
As it stands, self-represented litigants are doing these cases without paralegals or lawyers, so if someone is trained and given an extra year of education to learn the ropes, we don’t think it’s
necessarily a bad idea. Paralegals are already permitted to handle Small Claims Court cases under $25,000, and they can appear for limited criminal matters and provincial offence matters. As long as there are controls in place and they have the proper training, we don’t think there would be a huge risk to the general public.
At simple divorce, we believe added competition to offer legal services at a lower price will positively benefit consumers. And what are your thoughts?
