In a recent Family case, the court took the opportunity to make some blunt and sobering declarations: It said that most self-represented litigants are “unable to present their case in a meaningful way” in the “complex and rule-driven adversarial process” of the Ontario court system. As for the case before it, involving two litigants who each represented themselves in their five-day trial, the court said that the proceeding was in many ways “an unfortunate waste of important and scare judicial resources over the course of five years”.
The facts were straightforward enough. The parties never married, but were together for nearly 25 years and had children together. The woman had served as the sole income-earner for the vast majority of their time together; in contrast the man never worked after a workplace accident that took place about 8 years into their relationship. Furthermore, he had a lifelong gambling addiction that, in the court’s word’s, had “significantly depleted” the family’s wealth.
The court was asked to resolve multiple legal issues arising from a separation agreement the parties signed in 2012, and to determine whether the man had any valid claims against the woman. These included his claims for spousal support, and for an interest in some real property she owned.
Ultimately, the court ruled in the woman’s favour. But as a prelude to doing so, it noted that since both parties were self-represented, this gave rise to numerous issues due to the complexity of the legal issues in the case. The court wrote:
The claims made by the Applicant [man] in this matter raise complex legal principles. It would have been trying, even for an experienced counsel, to cogently and convincingly present all the relevant evidence necessary to support these claims. For a self-represented party, this was simply an impossible task, no matter how knowledgeable or skilled that self-represented individual might be. The Applicant in this case had very little understanding – if any – of the legal principles applicable to his claims, or of the evidence he needed to adduce to prove them. His understanding of the trial process, including what was relevant evidence and how to present it, was extremely limited.
Adding to the court’s challenge was that neither party was able to concentrate on legal issues, but also used the litigation to foster their existing acrimony:
To add to these significant challenges, this trial proceeded with two self-represented litigants who, with no legal training, struggled to focus on what was relevant to the legal issues before the Court, as opposed to what appeared relevant to them on a personal basis. In that context, cross-examination became an opportunity for them to prolong their decades-long spousal conflict, re-victimize each other, and vent once more all the wrongs they felt they had suffered at the hands of each other (relevant or not) in a different forum.
Using the present case as just one example, the court lamented the massive burden these kinds of scenarios placed on the Family courts generally, together with the waste of precious judicial resources. It said:
There is something very wrong about our adversarial system when it becomes the only option available to self-represented litigants to resolve their family disputes.
In many ways, this proceeding was an unfortunate waste of important and scarce judicial resources over the course of five years. Despite countless court appearances, including many conferences in which dedicated and experienced family judges tried to make the parties understand the process, the evidentiary burdens, the legal issues and the complexity of a trial, by the end of day four of this trial, the Applicant was still unable to articulate with any specificity the relief he was seeking from the Court. … I was bombarded with thousands of pages of documentary evidence (some relevant, some not) going back more than fifteen years, and I was left as the trial judge with the Herculean responsibility of formulating the Applicant’s claims, quantifying them and generally sorting all this out for these parties.
…
I am making these preliminary comments to reiterate what has been stated over and again by countless legal professionals, scholars, and judges from all levels of court over the course of too many years. Our adversarial system, no matter how much effort we devote to making it user-friendly, is not suited for self-represented litigants. The resources available within our judicial system, including judicial resources, are stretched way too thin to leave it to the Court to sort out extremely important family issues with self-represented litigants who have no legal training, and most of whom are unable to present their case in any meaningful way in the context of what is a very complex and rule-driven adversarial process.
The court’s comments – while perhaps refreshingly candid – are arguably controversial. What are your thoughts?
For the full text of the decision, see:
Ilaslan v. Poirier, 2024 ONSC 61 (CanLII), <https://canlii.ca/t/k2f0l>
