In the Canadian justice system, participation by self-represented litigants is increasingly common. But if you are thinking about going it alone in your Family Law matter, just beware: You might not get much help from the trial judge hearing your case.
Back in 2006, the Canadian Judicial Council put out its “Statement of Principles on Self-represented Litigants and Accused Persons”. The Preamble to that document acknowledges that unrepresented litigants “both face and present special challenges with respect to the court system.”
One of those “special challenges” falls into the lap of the court itself. That’s because there’s no clear answer on how much – or how little – legal assistance a trial judge can or should give self-represented parties, when they appear in court before them.
A pair of recent Family Law decisions by the Saskatchewan Court of Appeal answers this question fully.
The facts in J.L. v T.T. involved the parents of a 4-year-old child who were in dispute over issues of parenting and child support. During the hearing the mother had the help of her lawyer, but the father was unrepresented throughout. The trial judge’s ruling was not in the father’s favour, and he appealed on the basis that the trial judge was biased against him, among other things.
The Saskatchewan Court of Appeal allowed the appeal, with a key reason being that the trial judge gave the father “legally inaccurate” information about the rules of evidence and the examination of witnesses. In the course of ordering a new trial, the Appeal Court clarified that at trial judge is obliged to give some help to all the parties, but there are firm limits around the help that can be offered those who choose to represent themselves:
a. Failure to provide adequate assistance to J.L. as a self-represented litigant
[58] A judge who presides over a trial has a duty to ensure that it is fair to all participants. … Where one or more of the litigants in a civil proceeding is self-represented, properly discharging this duty may require a trial judge to provide some level of assistance or accommodation so as to ensure that a self-represented party has a fair opportunity to present a case to the best of their ability. … [59] This does not mean that trial judges are required to tilt the playing field. To the contrary, while it is understood that judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence, a trial judge cannot provide legal advice to a self-represented litigant, become an advocate for them, guide the presentation of their case, bend the rules of evidence, or decline to apply the substantive law to compensate for their lack of legal knowledge … A layperson who chooses to represent themselves in litigation invariably runs the risk that their lack of legal training places them at a disadvantage when the opposite party is represented by counsel. Trial judges are not obligated to compensate for this; they are only required to do what is necessary to provide a fair and impartial hearing for both parties and to ensure that a self-represented litigant is not unfairly disadvantaged by their lack of familiarity with the trial process …
That same Appeal Court had a similar message in an earlier case called Fraser v. Ksenych, where it likewise emphasized the important limits on trial judge’s ability to assist self-represented parties:
[27] Self-representation at trial creates a complex situation for trial judges. They must provide adequate assistance to the self-represented person, while being cautious to never cross the line from that of impartial adjudicator into the realm of offering assistance in a manner that is unfair to the other party. A judge cannot offer legal advice. It is not for the judge to make the case for self-represented litigants or to take charge of their marshalling of evidence and arguments. Instead, trial judges must help the self-represented party to understand the general nature of the issues in question and guide them through the procedures that are used at a trial to present evidence and arguments to address those issues. However, such assistance and guidance does not transform the judge into an advocate or a director of a self-represented party’s litigation. That primary responsibility always remains with the litigant.[Emphasis added.]
For the full text of the decisions, see:
J.L. v T.T., 2023 SKKB 35 [Trial Decision])
J.L. v T.T, 2024 SKCA 38 (CanLII), <https://canlii.ca/t/k3wpm>
Fraser v. Ksenych, 2022 SKCA 93 (CanLII), <https://canlii.ca/t/jrf39>
