If you are going through a separation or divorce, it will be tempting to represent yourself in the proceedings. You may think to yourself: “There are plenty of legal resources online, and my case is pretty straightforward. How hard can it be?”
What you may have also heard that the court will grant self-represented litigants a certain amount of leeway, and may even actively participate in helping you represent yourself – but only to an extent. This is in the interests of justice, to ensure you get a fair hearing even though you lack experience in presenting and arguing a case.
In this context there are certain rules that the court itself must follow when dealing with self-represented litigants. These were the focus of a recent Ontario Family case called C.P. V. D.M.
The father was self-represented, and the judge took to helping him in the course of the proceedings. In doing so, the judge began by noting the list of rules by the Ontario Court of Appeal, in a case called Grand River Conservation Authority v. Vidhya Ramas. The Appeal Court wrote:
- Self-represented litigants are expected to familiarize themselves with the relevant practices and procedures pertaining to their case and respect the court process;
- The Court had a duty to ensure that self-represented litigants receive a fair hearing;
- The Court must permit the represented party and the self-represented party to explain how they understand where things stand in the litigation;
- The Court must swear the party in before he/she makes submissions so that all admissible evidence can be relied on;
- It is open to the judge to engage in active adjudication in order to obtain relevant evidence. However, a judge must not cross the line between assisting self-represented litigants in the presentation of their evidence and becoming their advocate.
With these rules in mind, the judge in C.P. v. D.M. then noted that the leeway granted to the self-represented father was not unlimited; there were many practical and procedural constraints. For example, the judge reproached the father for the way he approached the list of filed documents:
I also declined to accept the thousands of documents (in nine volumes of materials) filed with the court. It is an error in litigation strategy to file documents (such as the entirety of … communications from 2021 to 2024), other than those a party intends to rely on at trial. The court is not a dumping ground, nor is it the judge’s job to look for the needle in a haystack. Considerable time was wasted looking for documents.
With these kinds of admonishments out of the way, the judge in listed the various help given to the father in his Family matter, in recognition of the importance of providing him appropriate assistance. Specifically, the judge:
- Provided the father with a booklet that offers advice to self-represented litigants at trial;
- Advised him he could bring a legal agent to assist him, at any time;
- Throughout the entire trial, reminded the father of the issues that the judge was required to decide;
- Explained the concepts of direct examination and cross-examination to him (with examples);
- Re-framed the father’s questions, to assist him with the cross-examination; and
- Allowed the father to rely on his trial Affidavit and a Financial Statement, even though they were served late.
The takeaway? Self-represented litigants will get some assistance from the court, but there are definitely many limits to the help that can be offered.
For the full text of the decisions, see:
Grand River Conservation Authority v. Vidhya Ramas, 2021 ONCA 815 https://canlii.ca/t/jkl02
C.P. V. D.M., 2024 ONSC 6626 http://canlii.ca/t/k8f68
