On Oct. 15, paralegal Maureen Boldt began to serve her four-month house arrest sentence as she was found in contempt of court for preparing family court documents without being a lawyer.
On Oct. 1, Justice Patricia Hennessy of the Ontario Superior Court of Justice sentenced Boldt, who was also ordered to pay the Law Society of Upper Canada $35,000 in costs. Boldt was found to have committed the act of preparing separation agreements, despite being previously ordered to refrain from doing so. Civil
contempt charges were brought against her by the law society.
Paralegals have been openly advertising for decades services such as uncontested divorces, representation in family court, and preparation of family court documents. Despite prosecuting Boldt in 1998, 2000, and 2006,
the law society for the most part gave silent authority to paralegals to offer family court services, as prosecution for the unauthorized practice of law was rare.
As of May 1, the law society was empowered by provincial legislation to regulate Ontario paralegals in the public interest. The law society’s governing body, Convocation, immediately determined that it was not in the
public interest for independent paralegals to offer any family court services.
When asked during a law society teleconference how it determined the areas of acceptable paralegal practice, I was told it was based on the society’s 2004 task force on paralegal regulation report.
The task force consulted with over 50 groups and organizations, however, not one member of the public was consulted, nor any consumer groups. When the law society’s duties include facilitating access to justice for the people of Ontario and protecting the public interest, the consultations should have included and
been dominated by public input.
The law society has a legally required paralegal standing committee that makes recommendations to convocation on how paralegals should be regulated. The committee consists of five paralegals, five lawyers, and three lay people.
In the grand scheme of things it really does matter what the committee recommends, as Convocation, consisting of 40 lawyers, two paralegals, and eight lay people, can overrule any recommendation by the paralegal standing committee and dictate exactly how paralegals will be regulated. It seems that the lawyer-dominated Convocation is only interested in advice if it agrees with its own opinion.
The family court rules continue to allow the presiding judge in a case to allow a paralegal to represent an individual in that court. The law society warned paralegals present at a paralegal conference at the end of September that they risk prosecution if it is found that they have represented in family court, even with the permission of the judge.
I believe a judge hearing a case can better determine public interest than the law society. Unlike the provincial government, which is accountable to the people of Ontario at election time, the law society, whom the government decided to give the power to determine paralegal areas of practice, are not
accountable to anyone except their licensees.
Paralegals that have been providing family court services to the public for years have been forced out of business. The lucky few have not had to change careers, or collect social assistance; they are working for lawyers providing the exact same services.
Many of the low- to moderate-income individuals involved in family court disputes are not able to afford the higher lawyers’ fees. Should a single mother or a woman escaping an abusive relationship have no place to turn? Is that in the public interest?
It is not too late for the provincial government and the law society to bring family law paralegals under the regulatory umbrella. Currently, paralegals are permitted to appear before the Small Claims Court, provincial
offences court, including traffic tickets, criminal court on summary conviction offences, and before tribunals and boards such as the WSIB and the Landlord Tenant Board.
Paralegals who have prepared family court documents, such as uncontested divorces, in the past have always been subject to the checks and balances of court staff and judges reviewing the documents for accuracy.
It may be more difficult for the law society to regulate a paralegal who only prepares documents, however, the law society’s duty is not to do what is easy, but to do what is in the public interest.
The overwhelming majority of paralegals want to be regulated by paralegals, and not by a 200-year-old institution that has always and continues to be run by lawyers. Paralegals’ fears that the law society would regulate in lawyer’s best interest and not the public interest are being confirmed.
The approximately 85 per cent of unrepresented litigants who appear before the family courts each day need a choice between hiring a lawyer or a less expensive paralegal. For those who cannot afford a lawyer, they deserve the choice of hiring an experienced, licensed, and insured paralegal.
The law society and new Attorney General Chris Bentley must give people that choice. What the law society’s Convocation seems to have forgotten or ignored is the basic principal that with the public safeguards put in place by regulation, it is in the public interest for paralegals to offer more services to the
public, not less.
The Law Society Act requires the attorney general to serve as guardian of the public interest of the practice of law and provision of legal services in Ontario. Bentley has his work cut out for him to clean up the mess left
by his predecessor.
The public demands that paralegals offer family law services. It seems to me that is the definition of public interest. Ultimately, paralegals want self-regulation, but in the short term for their sake and the public’s sake they want a regulatory system that is fair for paralegals and the public.
Marshall Yarmus is an independent paralegal operating in Toronto and is the former vice president of both the Paralegal Society of Ontario and the Paralegal Society of Canada. E-mail: [email protected]
