Court File and Parties

COURT FILE NO.: FC607/22 DATE: October 4, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Avtar Bassi, Applicant AND: Danyelle Doris Gibson, Respondent

BEFORE: SAH J.

COUNSEL: The Respondent, in person Kaila Meddoui, for the Applicant

HEARD: In Chambers

Endorsement

Overview

[1] The respondent brings this 14B motion seeking leave to permit a licenced paralegal, Mr. McCurdy, to act as her agent in her family law proceeding by providing assistance in all aspects of the case, except trial.

[2] This case involves a three-year-old child, and it is scheduled to proceed to a trial management conference on October 7, 2024. The matter is on the November trial sittings.

[3] The 14B motion form indicates the motion is made with the consent of all persons affected. The material submitted includes an email from applicant’s counsel, confirming consent “to bring a motion for leave to act as the respondent’s agent in this matter”. My reading of the email exchange suggests that explicit consent was not provided for the paralegal to act as agent but rather consent was granted to bring a motion for leave.

[4] The motion material was served on the applicant’s counsel on September 23, 2024. The seven days within which a response could be filed expired on October 1, 2024, having regard for court closure on the National Day for Truth and Reconciliation. No response was filed.

Issue

[5] The issue to be determined is: should the proposed paralegal be permitted to represent the respondent in this family court proceeding?

Legal Principles and the Status of Paralegal & the Family Legal Services Provider

[6] Pursuant to Rule 4 (1)(c) of the Family Law Rules, O Reg 114/99 (FLR), a party may be represented by a person who is not a lawyer only if the court gives permission in advance.

[7] The respondent relies on several cases in her material including: Stone v Stone; Stone v Stone; Children’s Aid Society of the Niagara Region v P.(D.); Scarlett v Farrell, 2014 ONCJ 194.

[8] These cases, and others, have set out various legal principles and considerations, which I have summarized as follows:

a) Rule 4 (1)(c) is discretionary, and each request must be considered on its own merits. b) Rule 4 (1)(c) should be interpreted in a manner consistent with existing legislation and the vestiges of the inherent powers of the judiciary to authorize lay representation in the courts. c) Rule 4 (1)(c) should be interpreted narrowly to consider certain vulnerabilities in non-lawyer representation that may impact a litigant. d) Rule 4 (1)(c) should be implemented only in limited cases in which “special circumstances where “special expertise” justifies it”. e) Considerations include: i) non-lawyers are not bound by a code of ethics; ii) the solicitor-client privilege does not exist between a lay representative and the litigant; iii) liability insurance may not be in place to protect the litigant; iv) most lay representatives lack the necessary training, education and experience in litigation; v) inability to afford a lawyer is not, in and of itself, a special circumstance which the court should consider. f) The FLR do not define “representation” for the purpose of r.4(1) (c) or otherwise.

[9] Most cases considering r. 4(1) (c) were decided prior to May 1, 2007, when the Law Society of Ontario (LSO) became responsible for regulating the paralegal profession as a result of amendments to the Law Society Act, R.S.O. 1980, c.L.8, brought about by Bill 14.

[10] Since then, the Paralegal Standing Committee initiated and instituted the Paralegal Rules of Conduct, and the Law Society issued the first paralegal licences in early 2008 to approved applicants who passed the licensing examination.

[11] With the amendments to the Law Society Act, section 50(1) prohibiting non lawyers from appearing in court to represent people “except where authorized by law” was repealed.

[12] The Law Society Act now defines “licensee” as :

(a) a person licensed to practise law in Ontario as a barrister and solicitor, or (b) a person licensed to provide legal services in Ontario.

[13] In December 2022, Convocation approved a proposal that will allow paralegals with appropriate training to provide certain family law services. The LSO partnered with Fanshawe College to deliver this program/legal training. The first session of the training starts in January 2025 and the first anticipated graduates are eligible to be registered as Family Legal Services Providers (FLSPs) in May 2025.

[14] The proposed scope of activities for FLSPs who successfully complete the program and meet the LSO’s requirements includes: assisting clients with process navigation in family court, completing applications for joint and uncontested divorces (with no corollary relief pled), and preparing and arguing motions to change child support based on the payor’s “line 15000/T4 slip” income excluding special and extraordinary expenses. FLSPs will also be able to respond to support enforcement proceedings, file domestic contracts and prepare change of name applications. [1]

Analysis

Training, Experience and Scope of Representation

[15] The proposed agent is a licensed paralegal in good standing with the LSO. He has been providing legal services since 2012 in various tribunals and levels of court in Toronto.

[16] He submits he appeared at the Divisional Court in Toronto, with leave of the court, as an advocate on urgent motions. He does not specify if this was for a family law matter and no endorsement or order was provided.

[17] Mr. McCurdy obtained a certificate in negotiation from Osgoode Hall Law School and a certificate in Effective Lawyering with Clients Leaving Abusive Relationships from Luke's Place.

[18] Though Mr. McCurdy theoretically has more training and experience than a lay person or potentially a friend of the respondent, his paralegal designation, in and of itself, does not grant automatic leave and does not alter or change the analysis required under r. 4(1)(c).

[19] It is significant to note that Mr. McCurdy’s P1 paralegal licence designation does not specifically permit him to represent a party in the Superior Court of Justice, Family Court. The P1 licence restricts— intentionally, in my view—his representation to:

1. the case of a proceeding in the Small Claims Court, before the Small Claims Court;
2. in the case of a proceeding under the Provincial Offences Act, before the Ontario Court of Justice;
3. in the case of a proceeding under the Criminal Code, before a summary conviction court;
4. in the case of a proceeding before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, before the tribunal; and
5. in the case of a proceeding before a person dealing with a claim or a matter related to a claim, before the person.

[20] The LSO’s current restriction of paralegal representation in the Superior Court of Justice, Family Court carries over to the future FLSPs. As outlined above, the future FLSPs have a very limited scope of practice in family matters.

[21] The current and future scope of practice was undoubtably given careful consideration by the LSO and the nature of paralegals’ current and future practices was intentionally restricted.

[22] To me, this signals that the court must cautiously approach requests from paralegals, to ensure leave is not automatically granted permitting them to represent litigants in areas which they have been expressly restricted practice by their governing body.

[23] The FLR have not been amended to include a paralegal as a representative authorized to represent litigants in family law matters. They require leave as all non-lawyers do. As such, consideration of this request will be treated no different than any other request from a non-lawyer.

[24] Mr. McCurdy seeks to, inter alia, accompany the respondent to court appearances (except trial) and potentially speak on her behalf. He is not currently permitted to do this by his governing body, and I am not satisfied, as further discussed below, that an exception should be made in this case.

Code of Ethics

[25] Mr. McCurdy deposes that he is committed to acting with honesty, integrity, and forthrightness and he understands the importance of maintaining the integrity of the justice system. He claims to have maintained a strong commitment to ethical practice since he began providing legal services in 2012 and is bound by the Paralegal Rules of Conduct.

[26] I have no reason to doubt Mr. McCurdy’s intentions. However, his intentions cannot stand in place of or in high priority to considerations discussed above.

Insurance

[27] Mr. McCurdy has professional liability insurance that he claims covers family law matters in the event of any errors or omissions.

[28] A partial copy of his Paralegal Professional Liability Policy was attached to his affidavit. The document states that the “professional services” include “…family services as per application dated March 22nd, 2024”.

[29] It is not possible, on the face of this document, to determine the specifics of what insurance is available to the paralegal and the extent to which it protects the respondent in this case.

[30] It would be unlikely, however, that insurance extends beyond the scope of practice as authorized by a paralegal’s governing body.

Privilege

[31] Mr. McCurdy deposes that he has explained the role of paralegal-client privilege to the respondent, and she understands its importance in these proceedings. This criterion plays a lesser role in the analysis given the evolution of the paralegal’s status from when first considered by the courts.

Special Circumstances

[32] The respondent is no longer eligible for Legal Aid and is currently unemployed. She claims to be overwhelmed by the court process and requires assistance in navigating these proceedings, particularly in the context of allegations regarding intimate partner violence.

[33] I am sensitive to the concerns of the respondent.

[34] Family violence is a factor set out in both provincial and federal legislation that the court must consider when assessing the best interests of a child. Its relevance and impact on our society cannot be understated.

[35] And yet, paralegals are not permitted by the LSO to act in cases involving parenting and in particular family violence, not now nor once the FLSPs program is in place.

[36] Rule 4(1)(c) was not intended to broaden the right of representation of parties by non-lawyers, as a general rule, to allow paralegals to now appear in family matters in the Superior Court of Justice; it was intended to codify the existing discretion of judges to permit non-lawyers to represent parties in court in very limited and special circumstances, perhaps including where special expertise is required. See: Simmons v. Boutlier, [2000] O.J. No. 476.

[37] Without undermining the value of Mr. McCurdy’s additional training in intimate partner violence, I do not find the certificate to be the type of special expertise contemplated by the case law applying Rule 4(1)(c). Additionally, it cannot override the limited nature scope of practice authorized by the LSO.

[38] I would not permit a suspended lawyer to represent a party in a proceeding because their governing body does not permit it. I draw a parallel in this case, acknowledging that Mr. McCurdy is a paralegal in good standing. Allowing the paralegal to represent the respondent would be akin to permitting representation through the back door when it is not permitted through the front door.

[39] I decline to exercise my discretion to permit Mr. McCurdy to represent the respondent in this case, particularly when his governing body restricts such representation. To decide otherwise would undermine the LSO and compromise the integrity of the justice system.

Disposition/Order

[40] For the reasons set out above, the respondent’s 14B motion dated September 23, 2024 is dismissed.

“Justice Kiran Sah” The Honourable Justice Kiran Sah Release Date: October 4, 2024

[1] Family Legal Services Provider - Paralegal | Law Society of Ontario (lso.ca)