June 28, 2017

Paralegals in family courts ‘not the solution,’ Toronto judge says

Paralegals in family courts ‘not the solution,’ Toronto judge says – The judges at Toronto’s 311 Jarvis St. courthouse — all of whom are family court judges — are “absolutely, 100 per cent opposed to having paralegals in family court,” one of the jurists told the Star.

Ontario court Justice Marion Cohen, appointed to the bench in 1993, was speaking just days after the release of a report last week from former Ontario court chief justice Annemarie Bonkalo that urges the provincial government to allow unsupervised paralegals into the family court system, where the majority of litigants are self-represented.

Cohen said if the laws are ultimately amended to allow paralegals into family courtrooms, where they are currently barred, the judges at 311 Jarvis will of course respect them “without any apprehension bias.”

“These recommendations are not the solution,” Cohen said of the problems facing the family justice system, expressing particular concern with allowing paralegals to handle complex child custody and access issues.

“What’s at stake (in these cases) is of great magnitude,” she said in a rare interview in her office at the courthouse. “This is the most important work that we do.”

The solution, she said, is a “properly funded, properly resourced legal aid system. It’s what the people of Ontario have a right to expect. . . . This is your legal system and you expect to get the same access to your legal system as everybody else gets.”

Cohen’s statements would not come as a surprise to many in the legal community, as Bonkalo herself noted in her report that many lawyers and judges are against allowing paralegals into family court, leaving the government and the Law Society of Upper Canada to figure out how to implement what are clearly divisive recommendations.

Ontario Attorney General Yasir Naqvi has said the government is committed to working on changes “that will have a real, positive impact on people’s lives, like allowing paralegals to be trained to provide family law services.”

He told the Star in a statement that “continuously expanding financial eligibility for legal aid” is part of the plan to improve access to justice. A previously planned increase for financial eligibility will happen April 1, though critics have said that the threshold will still be far too low for many people to qualify.

The current income cut-off to qualify for legal aid in family law for a family of four is about $29,000. Increases to the plan were notably not part of the recommendations in Bonkalo’s report.

“Recommendations like expanding legal aid to cover existing gaps are not practicable. Moreover, I do not agree that the solution to any crisis in access to legal services lies solely with (Legal Aid Ontario) or the government,” Bonkalo wrote.

She recommended the law society, which regulates both lawyers and paralegals, develop a specialized licence for paralegals wanting to practise in family law.

Bonkalo said they should be allowed to work on services including custody and access, simple child-support cases and restraining orders. She also recommended that they be allowed to appear in court, other than at trials.

The family law bar has come out strongly against Bonkalo’s recommendations.

“Justice Cohen is an experienced and highly respected judge of the Ontario court of justice. We wholeheartedly support and share the views of the 311 Jarvis bench on this important issue,” said Katharina Janczaruk, chair of the Family Lawyers Association. “The issues identified by Justice Cohen are of critical importance and must be addressed to improve access to justice.”

Stephen Parker, president of the Ontario Paralegal Association, said he appreciates Cohen’s position, but said there was a time when other areas of the law were considered too complex for paralegals, “but it has proven not to be the case.”

“Madam Justice Bonkalo agreed, and has consequently recommended further education and licensing” for family law, Parker said.

Cohen said custody and access issues are “complicated endeavours” in which the judge has to ensure everything is being done in the best interests of the children.

She said one judge at 311 Jarvis highlighted that it is specifically recommended that paralegals not handle family cases involving property, which are dealt with in the Superior Court of Justice.

“ ‘Paralegals can’t assist on the question of who gets the Rolex, but they can assist on who gets the kids?’ ” is how the judge put it, Cohen said.

And she wondered what will happen to individuals whose child-support cases transform from “simple” to “complex” and who may not be able to afford a lawyer. One example of this would be if one partner says the other is making far more money than what is indicated on their tax returns.

Bonkalo specifically recommends against paralegals working on “complex” child-support cases. Cohen worries that an individual in such a case could decide to abandon the child-support issue because all they can afford is a paralegal. “These are disincentives,” Cohen said.

Then there’s the argument of “something is better than nothing,” as indicated in the Bonkalo report.

“It is the opinion of the judges of this court (at 311 Jarvis) that something is not better than nothing,” Cohen said.

She explained that there is plenty of case law on self-represented litigants, and judges know how to treat them. But the idea of having a paralegal next to them is concerning, she said.

“It’s going to seem like they have somebody to represent them, but because it’s an inadequate form of representation in family law because it’s not a trained lawyer’s representation, the appearance is not going to be the reality,” she said.

“There is the possibility that the issues will be inflamed and courts will be less able to get information from the clients, and that increases the risks of making the bad decision in a custody case.”

She said the recommendations in the Bonkalo report are ultimately directed at the individuals who come into her court, the Ontario court of justice, as anything dealing with property would go to the Superior Court, where paralegals are still barred.

“But their custody and access cases are as complex as anybody’s,” she said of the individuals who come into her court.

“What will happen is paralegals will squeeze the lawyers out and the quality of justice in the Ontario court of justice will suffer,” she said. “We have a court system that is premised on lawyers. We need lawyers. This is law. Not only is this law, it is profoundly important law, and we need lawyers to represent these people.

“A legal education is an education in being a lawyer, in doing legal research, in identifying legal issues, in knowing how to read a legal statute, and understanding rules of evidence. That is a legal education.”

The family law system has become far more complex since Cohen became a criminal and family lawyer in the 1970s, she said, with greater understanding of issues facing families including domestic violence and sexual assault.

As complexity and demand have gone up, resources, especially legal aid, have gone down, she said, adding that this environment has led people to be prepared to expect to come to court without a lawyer and represent themselves because there’s no reasonable cost alternative.

“We need a properly funded legal aid plan and that’s always been the answer.”

Note – March 14, 2017: This article was edited from a previous version to clarify the words of Ontario court Justice Marion Cohen.