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The Perils of Self-Representation on Family Law Matters

The Perils of Self-Representation on Family Law Matters

A new study, conducted by university law professors Nicholas Bala and Rachel Birnbaum, reveals that an upsurge in the number of self-represented litigants is creating significant difficulties in the Ontario family court system.

The study was based on an Internet-based survey of 325 family lawyers attending a Family Law Summit held by the Law Society of Upper Canada in June of 2011. The results showed a distinct increase in the number of self-represented parties in family matters brought before the court, with “inability to afford a lawyer” being the most predominant reason.

However – despite the common misperception that not hiring a lawyer will save costs – the lawyers participating in the study reported that when litigants on the opposing side of a family matter choose to represent themselves, the costs for the represented side tended to increase. They also reported that in their view, unrepresented litigants generally have worse legal outcomes in the case than if they had hired a lawyer to represent them.

The study reveals an area of growing concern for the justice system. Indeed, in an Ontario decision called Cicciarella v. Cicciarella, the court had occasion to address the adjustments that need to be made to accommodate the upswing in numbers of self-represented litigants. It wrote:

[36] The increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges. Leeway is allowed for a self-represented party, especially as it relates to procedural matters …

[37] While judges should afford an unrepresented litigant additional “leeway,” there is a line to be drawn, as our Court of Appeal enunciated in Davids v. Davids 1999 CanLII 9289 (ON C.A.), (1999), 125 O.A.C. 375 at para. 36 (C.A.). The judge cannot descend into the arena from the bench and advocate for the self-represented litigant …

[38] It is axiomatic that both sides are entitled to a fair trial. As Platana J. noted at para. 18 of Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156 (Ont. C.J. (Gen. Div.):
The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to override the rights of a defendant party.

The court went on to observe that, as a direct result of this increase in the number of self-represented Canadian litigants, in 2006 the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.” While the Statement of Principles is meant to be advisory in nature, it provides guidance to judges, court administrators, members of the Bar, legal aid organizations and government funding agencies in relation to self-represented persons. Among other things, it sets out the responsibilities of judges towards self-represented litigants and other parties, and emphasizes that judges are to do whatever is possible to provide a fair and impartial process, and to prevent an unfair disadvantage to self-represented persons. It underlines the point that, while a judge may choose to exercise some leeway in procedural matters, he or she must never slip into the role of advocate for the self-represented party.

Notwithstanding these measures, the decision by a litigant to represent him or herself is one that can be fraught with challenges and negative repercussions. Family cases tend to be complex, and their outcomes have a profound effect on the parties and their children. Therefore, any decision to proceed without competent legal representation in a family law matter should only be undertaken after carefully evaluating all of the considerations and possible ramifications.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit www.RussellAlexander.com

For the full text of the judgment, see:

Cicciarella v. Cicciarella, 2009 CanLII 34988 (ON SCDC) http://bit.ly/o8gYmj

For a summary of the findings by the study’s authors, reference: http://bit.ly/ouTyYa