Family Legal Services Report - Request for Feedback
Justice Bonkalo released her Family Legal Services Report in March. That was followed by a request for feedback by the Ministry of the Attorney General and the Law Society. Their deadline is May 15.
Recommendations 4 and 5 of the Bonkalo Report suggest the expansion of paralegal practice with a specialized licence to act in matters of child custody & access, child support, restraining orders, and enforcement up to, but not at, a trial, as well as simple divorce.
TLA has been part of a group of family law associations responding to her report with a common voice in opposition to such expansion. TLA's own responding document is available here.
A group of lawyers has put forward a motion for hearing at the Law Society AGM on May 10. Groups of interested lawyers supporting the motion and against Justice Bonkalo's recommendations as presented, are arranging to be at the AGM to speak to the motion. There will likely be paralegals at the meeting speaking in support of Justice Bonkalo's report and against the motion.
Any TLA member interested in family law is encouraged to attend and be identified as a TLA member.
The TLA president, and most presidents of law associations around the province, will not be able to attend as the LSUC AGM falls during the FOLA (Federation of Ontario Law Associations) Plenary which is being held in Ottawa at the same time.
Feedback on the AGM from any TLA member attending is welcomed.
TLA responds to "Improving Access to Justice for Families" Report
UPDATE: Read the March 20th press release from TLA President Melanie Manchee.
Justice Bonkalo has released her Family Services Review, Improving Access to Justice for Families: Making the Family Court System Easier to Navigate, that addresses the provision of legal services by persons other than lawyers. It makes many recommendations for improvements to the system to provide better access to justice for litigants.
The report sets out recommendations re: unbundled services, coaching and better administrative processes in the courthouse, which include suggestions the TLA supports. Of great concern to the TLA are the recommendations which suggest Ontario family law clients would be well served by having specialized licensed paralegals act independently for clients in matters of custody, simple child support, restraining orders, and simple divorce (if no property issues.)
While licenced paralegals provide competent legal services, in defined areas, and hold an important position in the justice system in Ontario, their training and experience can never provide them with the skill set lawyers have, to view the family law client’s issues in total. An issue as important as custody cannot be addressed without an examination of all circumstances of the family, including legal issues such as each parent’s overall financial position, including property and liabilities, mobility rights, past or potential domestic violence, effects of new partners and their family status, etc. A non lawyer legal representative may be trained in completing the documents necessary to seek a divorce, but may not know to advise a client of the consequences of the divorce, such as the limitation period for seeking equalization of net family property, entitlement to survivor benefits in pensions, and the loss of extended health coverage. Family law advice cannot be given in silo type responses to narrowly defined issues. Paralegals do not have the substantive legal knowledge to advise family law client about their rights and responsibilities. Such a status is likely to lead to disastrous results.
There is no doubt that the family law justice system is in crisis and requires major change. The first and most important step on this course of change is to fully implement the Unified Family Court across Ontario. There is no possible rationale to justify any further delay in this endeavour, after forty years have passed since the first such court opened in Hamilton. Rather than expand the role of lesser trained representatives for participants in the family law courts, the TLA supports expansion of mediation services.
The TLA believes Ontario family law clients deserve competent legal advice which addresses all issues, from lawyer licensees, in order to have real access to justice. The TLA urges the Ministry of the Attorney General and the Law Society of Upper Canada to reject any paralegal licence to practise in the area of family law.
The TLA invites members who would like to participate in a discussion concerning the Bonkalo Report to attend a meeting on Wednesday, April 5 at 5:00 p.m. in the TLA Boardroom, Room S206, 361 University Ave. Please RSVP to firstname.lastname@example.org.
LSUC Challenges Faced by Racialized Licensees Working Group
As part of its ongoing efforts to promote equity, diversity and inclusiveness in Ontario's legal profession, The Law Society of Upper Canada created the Challenges Faced by Racialized Licensees Working Group (the “Working Group”) in 2012 to identify the challenges faced by racialized lawyers and paralegals and consider strategies for enhanced inclusion at all career stages.
On Dec. 2, 2016, the Law Society approved the Working Group’s final report, entitled Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions, with 13 recommendations to address issues of systemic racism in the legal professions. The Working Group, invited submissions from the public and the professions. The Toronto Lawyers Association responded with its submission of November 14, 2016. The Working Group’s final report and 13 recommendations were approved at Dec. 2, 2016 Convocation.
Letter to Minister Wilson-Raybould on Judicial Shortage
The Toronto Lawyers Association (TLA) says a crisis in the justice system is looming because of an "unprecedented" number of judicial shortages and is urging Federal Minister of Justice Jody Wilson-Raybould to take “immediate action."
"The current situation is verging on a crisis, as the civil justice system is unable to withstand the ongoing pressures exerted on it to the detriment of the public, the administration of justice and, indeed the Rule of Law," TLA president Stephen Mullings wrote in a letter to Wilson-Raybould. He described the impact of the resulting judicial shortages as “disastrous to the effective administration of justice." Read the full letter here.
Pathways Pilot Project Evaluation and Enhancements to Licensing Report
As part of the Law Society’s priority to strengthen the licensing process, the Pathways Pilot Project has been evaluated in a report that outlines a number of recommendations. The Pathways Pilot Project Evaluation and Enhancements to Licensing Report was presented to Convocation on September 22, 2016 and comment from the professions was sought. TLA provided comment in a letter to the Treasurer of October 19, 2016. Read the submission here.
The Professional Development and Competence Committee is now reviewing submissions. The Committee’s final report will be provided to and deliberated at Convocation on November 9, 2016. This Convocation will be webcast.
LSUC Consultation re Advertising and Fees
In response to concerns that have been expressed to the Law Society, the LSUC's Professional Regulation Committee struck a Working Group on Advertising and Fee Arrangements. The Working Group held preliminary consultations with a broad cross-section of the profession through a series of focus group sessions. The TLA participated in this process. The Working Group sought input from the profession with respect to a number of issues which were identified as potentially requiring a regulatory response. The issues include advertising and fees in real estate law and personal injury law, contingency fees and referral fees. Click here for a list of the specific issues. Click here for a link to the Professional Regulation Committee Report.
The TLA gathered input from its membership and submitted feedback to the Working Group on licensee advertising and fee arrangements via a letter from the President, Stephen Mullings. Read the submission here.
A message from the President of the TLA: Legal Aid threshold is woefully inadequate
Justice Ian Nordheimer’s recent ruling in the case of Tyrell Moodie broadcast to the outside world what litigants, lawyers, judges and governments have known for quite some time –the legal aid system, in particular the ‘poverty’ threshold to obtain legal aid, is woefully inadequate and out of line with the economic challenges facing accused persons in the province, specifically Toronto.
When Mr. Moodie made an application for state funding for a lawyer (also known as a Rowbotham application), Justice Nordheimer halted the trial of Tyrell Moodie on the basis that it was a “complex” case requiring counsel. “It is necessary for the applicant to have counsel in order to have a fair trial,” the judge wrote.
Mr. Moodie earned about $16,000 in the prior year, which made him ineligible for the legal aid funding threshold of about $12,000. In 2014, Statistics Canada considered an income of $24,328 as being the low income cut off for single person living in a metropolitan area. Mr. Moodie’s legal bills were projected to run about $11,000 (roughly 70% of his earnings) which prompted Judge Nordheimer’s ruling, including the following remark, “It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country”.
This ruling highlights the Government’s policies which have prevented robust legal aid funding for accused persons, making already vulnerable individuals even more so. The Toronto Lawyers Association has been well aware of the problems concerning legal aid funding. Past President Joseph Neuberger founded, and continues to Chair, the Toronto Lawyers Association Legal Aid Working Group. The TLA will make every effort to continue to work with Legal Aid Ontario, as well as the provincial and federal governments, to ensure a workable legal aid system is in place to provide high quality legal aid services within our communities, providing greater and more meaningful access to justice and thereby restoring confidence in the principle of the presumption of innocence.
Stephen A. Mullings
Toronto Lawyers Association
Call for Input on Compliance-Based Entity Regulation
The Law Society of Upper Canada has put forth a proposal to institute compliance-based entity regulation of lawyers and paralegals premised upon the LSUC identifying practice management principles and goals and setting expectations in broad parameters. The LSUC will also take responsibility for providing the necessary tools to assist lawyers and paralegals in understanding, implementing and maintaining these principles and in meeting expectations. TLA submitted comment on the proposal to the Policy Secretariat of LSUC. Read the submission here.
Proposed Revisions to Licensing Process for New Lawyers
TLA learned of the Law Society of Upper Canada's proposal to change the licensing process for new lawyers. The proposal outlines a reduction in time for the traditional articling duration as well as a reduction in the licensing examination hours. TLA responded to the proposal by requesting time to review the full details and consult with its membership. Read the letter to the LSUC Treasurer here.
Remuneration of Case Management Masters
TLA responded to the final report of the Case Management Remuneration Commission, expressing support for the conclusions that Case Management Masters should receive equal salary, pension and benefits to those paid to Provincial Court judges. Read the submission here.
TLA Responds to the Joint AG/LSUC Launch of Family Legal Services Review
Read the full TLA submission of April 29, 2016 here.
On February 9, 2016, the Ministry of the Attorney General announced that the Ontario Government and the Law Society of Upper Canada have launched a Family Legal Service Review to be headed by the former Chief Justice of the Ontario Court, the Honourable Justice Bonkalo. The purpose of the Review is to consider whether any, and if so, what legal services in family law matters might be provided by persons other than lawyers, for example, paralegals, law clerks or law students.
This Review comes in response to the urgent need to improve access to justice for Ontario families. In 2014 – 2015 over 57% of family law litigants did not have legal representation in court. It is undoubtedly time to consider alternative, accessible and affordable means of delivering family legal services, as the statistics show that the present system is not serving the interests of the public. The current court processes are complicated and cumbersome, and they can be intimidating or confusing to those who lack legal training and experience. Creating a system that is more accessible and less expensive is a challenging but laudatory objective.
The Toronto Lawyers Association looks forward to working with Justice Bonkalo on this important initiative. We will be responding to the AG’s request for input from the public, as well as meeting with, and making submissions to Justice Bonkalo. In its submissions, the TLA will emphasize the importance to the public of accessing competent and qualified legal services while at the same time ensuring individuals receive genuinely enhanced access to justice to resolve their family law disputes.
Consultation on the Representation of Children under the Family Law Rules
The Toronto Lawyers Association was invited to give input with respect to the serious issue of representation of children under the Family Law Rules. A copy of the TLA submission is available here.
Ontario Proposed Legislation for Street Checks Consultation
The Toronto Lawyers Association responded to the opportunity to comment on the Ministry of Community Safety and Correctional Services consultation regarding Ontario’s Proposed Regulation for Street Checks. A copy of the letter of comment is available here.
Safety in Cells at 361 University Courthouse
The Toronto Lawyers Association was apprised of some facts concerning the safety of prisoners and correctional officers at the 361 University Court House. In response, the TLA sent a letter to the Attorney General, the Hon. Madeleine Meilleur. A copy of the letter is available here.
Courts of Justice Act (CJA)
The Civil Rules Committee is interested in hearing from stakeholders on the issue of whether to recommend an expansion to the definition of "health practitioner" under section 1OS of the Courts of Justice Act (CJA). This section of the CJA indicates that a court may order a party to an action to undergo a physical or mental examination by a "health practitioner" where the physical or mental condition of a party to a proceeding is in question. The current definition of "health practitioner" includes those licensed to practice medicine, dentistry or psychology. There is some concern that this definition may be too narrow and may limit the Court's ability to order examinations by other health professionals or qualified experts. The Consultation Document is available here.
The Law Commission of Ontario (LCO)
TORONTO, June 26, 2014 — The Law Commission of Ontario (LCO) today released its Discussion Paper in its Legal Capacity, Decision-making and Guardianship project. The LCO encourages feedback from members of the public, including older adults and persons with disabilities, service providers, policy-makers, lawyers and advocates until Friday, October 17, 2014, as part of its public consultation process and expects to release a draft report and recommendations next year.
The opportunity to make decisions for ourselves is fundamental to our autonomy, our security and our conceptions of ourselves. Ontario has a relatively modern and sophisticated legal regime addressing situations where decisions are needed but decision-making abilities are at issue; nevertheless, stakeholders have identified this area of the law as a central priority for reconsideration and reform.
The TLA wrote to the Minister of Finance expressing the Association’s concerns over the draft legislation to overhaul the current automobile insurance system. In particular, the TLA expressed concern over the Bill’s proposed terms which would prevent an injured person from pursuing a SABS claim in court, even if the person was pursuing a court action for other losses arising from a motor vehicle accident. This would increase litigation costs and result in a multiplicity of proceedings. The TLA’s letter to the Ministry of Finance can be viewed here.
Proposed Amendments Re The Law of Negligence
The TLA has prepared a letter to the Director of Justice Policy Development at the Ministry of the Attorney General in response to the proposal by the Association of Municipalities of Ontario to amend the law of negligence. In the letter, the Association outlines its concerns with regards to the negative effect on access to justice for Ontarians. The full letter is available here.
Trinity Western University Proposed Law School
The TLA has prepared a letter to the Treasurer of the Law Society of Upper Canada regarding the Federation of Law Societies' preliminary approval of a law school at Trinity Western University (TWU). In the letter, the Association urges the Law Society to consider all aspects of this issue with the utmost care, taking into consideration its overarching duties to protect the public and to uphold the Rule of Law; and in doing so, to ensure that all licensees meet the requisite standards of professional competence, professional conduct, and education standards expected of all lawyers admitted to the practice in Ontario. The full letter is available here.
Insurance Dispute Resolution System Review Submission
The Toronto Lawyers Association ("TLA”) has been asked to comment on the current system for resolving automobile insurance disputes between claimants and insurers at the Financial Services Commission of Ontario ("FSCO”). The TLA believes that the review being performed by the Honorable Justice J. Douglas Cunningham is an important process to address the issues surrounding the mediation backlog and procedure followed by the FSCO. The full submission is available here.
TLA CPD Submission=
The TLA has long supported mandatory CPD, while encouraging LSUC to retain a flexible approach for lawyers, coupled with a fair, clear, and straightforward accreditation process for CPD providers. The TLA has made a submission to the LSUC on the Two-Year Review of the CPD Requirement based on feedback from the membership. The full submission is available here.
Paralegal Motion to LSUC re expanded scope of practice for May 8 AGM
A Paralegal Motion to the LSUC re expanded scope of practice will be discussed at the May 8, 2013 AGM. The motion refers to the Morris Report which was commissioned by the Attorney General of Ontario. The Morris Report is available on the Ministry of the Attorney General website which also
contains further details about paralegal regulation in Ontario.
The Law Society has a Working Group which has been
working on the implementation of the 11 recommendations set out in the Morris
Report . Their report:
Paralegal Standing Committee Working
Group's Progress Report on Matters Arising from the Five Year Review
Progress Report is located at pages 8 - 15).
Bill 34 - Courthouse Security - Contact your MPP Today
Bill 34 will allow police and court security officers to search all persons, including lawyers, seeking to enter a courthouse. Contact your MPP today and ask that the bill be amended to exempt lawyers.
Under the proposed legislation, sections of the Police Services Act will allow for a search without warrant any person, vehicle or property in a person’s custody seeking access to a public courthouse. These search powers would include a person’s lawyer, and could expose privileged communications between a lawyer and their client when applied. It is the view of TLA that it is neither reasonable nor necessary to include lawyers in the search powers contemplated by this legislation as it relates to courthouses.
Accordingly, TLA and the County and District Law Presidents’ Association (CDLPA) have requested an amendment to the legislation that would exempt lawyers from the search powers of the Act upon presentation of valid TLA or Law Society of Upper Canada credentials. This would enshrine in legislation the currently accepted practice acknowledged in courthouses throughout Ontario.
An overview of the legislation prepared by CDLPA is available, along with the written submissions made by TLA President Chris Matthews to the Standing Committee on Justice Policy.
This week the Justice Policy committee is considering amendments to Bill 34 based upon written submissions and presentations to the committee. After this review, there is no opportunity for amendments or to influence the legislation. Accordingly, please email your MPP today! A template letter to send to your MPP can be found here and a link to contact information for all of the MPPs is as follows:
Articling Task Force
Special Convocation of the Law Society dealing with the Articling Task Force and its recommendations.
The full Consultation Report (December 9, 2011) of the task force can be found here.
The TLA's Response to the Articling Task Force Consultation Report
The Final Report Pathways to the Profession: A Roadmap for the Reform of Lawyer Licensing in Ontario (October 25, 2012) can be found here (and the motion for deliberation).
The TLA's letter of October 24, 2012 regarding deferral of October 25th debate.
The TLA's Response to Articling Task Force Final Report Pathways to the Profession: A Roadmap for the Reform of Lawyer Licensing in Ontario (the "Pathways Report")
On November 22, 2012 the Law Society’s governing body approved a three-year pilot project that will allow lawyer licensing candidates to either article or complete a Law Practice Program, starting in the 2014-15 licensing year. For more information and the October 25 and November 22 debates archived visit the Gazette.
Comments on the recommendations in the Law Commission of Ontario's Interim Report "Towards a More Responsive & Efficient Family Law System"
Submission to the Law Society of Upper Canada regarding the 5 Year Paralegal Review
Review of the Insurance Act, specifically Regulation 69/07.
Submission to the Minister of Finance from TLA President Sam Marr, including a letter and memo (compiled in collaboration with the CDLPA).
Re: Toronto Masters
TLA member Hedy Epstein brought to our attention the provincial government's decision to terminate all of the permanent Masters' Registrar positions, and to have other people do their jobs (with per diem registrars in Court and other government employees performing the other job functions of the Registrars). Sam Marr, former TLA President, has written a letter to Lynne Wagner, Assistant Deputy Attorney General and Lynn Norris, Director, Court Operations (Acting) after learning of these developments.
Here is Mr. Marr's letter and the response.
Consultation papers submitted to the Law Commission of Ontario - Law as it Affects Older Adults: Developing an Anti-Ageist Approach and Law as it Affects Persons with Disabilities
Non-lawyers Investments in Ontario Law Firms (and response)
Submission to the Professional Regulation Committee (Law Society of Upper Canada) regarding the unbundling of legal services