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Posts tagged ‘Self represented litigants’

Ontario Courts Tell it Like it Is

A judge-cartoon

Ontario Courts Tell it Like it Is

While reviewing a few Ontario family decisions recently, I noticed that the judges introduced their written reasons with a subtle and judicially-uncharacteristic lament, and in some cases, outright incredulity.

Using phrases like “a family tragedy” or “unhappy story” the judges provide a glimpse of some of the empathy and quiet frustration underlying their otherwise-impartial decisions.

For example, in Zesta Engineering Ltd. v. Cloutier, the court introduced the case this way:

This lawsuit is a case study of the risks and consequences of intertwining business, family, and marital relationships. On its face, this proceeding involves claims for breach of fiduciary duty and misappropriation of corporate assets by departing employees, coupled with counterclaims for wrongful dismissal. Beneath the surface it is the unhappy story of the impact of a marriage breakdown on a successful business enterprise, and the decade of litigation that has ensued.

In a case called VanSickle (Elms) v. VanSickle the court began its judgment this way:

This is a family tragedy. The [father’s] relationship with his two children, … is now irreparably shattered. The parties have spent money they could ill afford on four days of trial wherein the [husband] has done his utmost to convince the court that his daughter, a university student, is no longer a dependent and not entitled to any support from him. ….

And from Justice Quinn (who can often be relied on for a little editorializing in his judgments, see my previous Blogs, there is the less-moderate introduction to the decision in Szakacs v. Clarke, where he pointedly tells it like it is:

Introduction

For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.

One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. …

At several points throughout the trial, Ms. Szakacs emphasized that she was a Christian who practiced Christian values. There must be some key pages missing from her copy of the Bible.

Finally, in a judgment from only a few months ago called De Cruz-Lee v. Lee, the exasperated yet still-mindful judge said:

Overview

1 This case is a classic illustration of the difficulty of obtaining justice when a trial is conducted by a party or parties who are self-represented. Ms. Angela De Cruz-Lee (“Ms. De Cruz-Lee”) was self-represented and conducted the trial by herself. It is said that a person who represents himself has a fool for a client. That saying should add something about how self-representation is about the most expensive trial lawyer you can pay for. … [T]his trial originally was scheduled for one to four days and was set … to settle two issues. On November 17, 2014 a further pre-trial was held. The issues were down to ownership of the home estimated to be a one to two day trial. The trial in fact went on for nine days. The dispute was over an approximate $53,000 held in trust. Regrettably, the costs of this trial will consume most if not all of that amount. I note that Superior Court trials in Family Court are governed by a variety of rules. These rules are designed to ensure trials are expeditiously run at some cost efficient level. At this trial, those rules meant nothing. …

In writing this judgment, I have cautioned myself, that in the end, Ms. De Cruz-Lee was poorly represented and I am going to have to make allowance for that fact in making my decision.

Judges are only human. Such sentiments are no real surprise in light of the parade of difficult, doubtless heart-wrenching family disputes that come before them daily – some of which should never have been aired in a Canadian courtroom at all.

For the full text of the decisions, see:

Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810

VanSickle (Elms) v. VanSickle, 2012 ONSC 7340

Szakacs v. Clarke, [2014] O.J. No. 6214

De Cruz-Lee v. Lee, 2015 ONSC 1900

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 us at www.RussellAlexander.com

Judges Speak Out About Self-Represented Litigants

loud

Judges Speak Out About Self-Represented Litigants

As family lawyers, we are well-aware of the common criticism by those involved in family disputes and litigation: that hiring a lawyer is expensive.

Although it may seem self-serving to point out the benefits of retaining experienced family law representation for your case, we can do one better: Here are some illustrations of the types of comments made by judges themselves about the difficulties of untangling the merits of a case when self-represented (or otherwise unrepresented) litigants – admirably as they may try – are unable to put forward their best case due to the lack of legal training.

For example, in a case called Leigh v. Milne, the Court of Appeal lamented the slow pace at which the family litigation had proceeded:

The Process

At the outset, let me address [the wife’s] concern about the process, culminating in the order under appeal. This proceeding on appeal is a graphic example of how difficult it is for a self-represented litigant to effectively navigate through the legal system. While the Courts struggle to adapt to the ever-increasing numbers of self-represented litigants, the legal system remains a process which works most effectively for litigants who are represented by lawyers. Judges expect that lawyers will police one another in order to keep a case moving forward at an acceptable pace and, when necessary, seek the assistance of the court to do so. Unfortunately, this leaves proceedings where one and, especially, where both of the litigants are unrepresented, susceptible to being unreasonably delayed by the party who does not want the matter to proceed. This is what occurred here.

In the recent Ontario decision called Szakacs v. Clarke, the court complained about the quality of court documents that had been filed in connection with a family case:

In self-represented litigation, the “pleadings” rarely reflect meaningful details of the issues to be tried. In this case, after reviewing the various orders in the trial record, I ventured further and read the notices of motion and the supporting affidavits leading to those orders for the purpose of learning the specifics of the dispute. This allowed me, when the parties were testifying, to raise certain matters that they had omitted or had wrongly concluded were unimportant. A trial judge should not be put in the position of having to find, present, argue and decide a case. Wearing that number of hats is unbecoming.

Finally, courts are mindful of the potential unfairness to the other side. While being willing to recognize that – out of a sense of judicial and procedural fairness – a self-represented litigant should perhaps be given a little more lee-way in connection with having to follow court rules and procedures to the letter, the court must still ensure that both sides of a family dispute get the fair hearing to which they are entitled. This was pointed out in a case called Baziuk v. Dunwoody, where the court said:

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 over ride the rights of a defendant party.

The point to take away from this, is that the decision to represent yourself in your family dispute may seem cheaper financially, but may have hidden costs in connection with the judge’s own perception and assessment of the merits. Make sure you make the right decision for your particular case.

For the full text of the decisions, see:

Leigh v. Milne, 2010 NSCA 36

Szakacs v. Clarke, 2014 ONSC 7487

Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156; [1997] O.J. No. 2374 (QL) (Ont. C.J. (Gen. Div.)

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 us at www.RussellAlexander.com.

Top Divorce Blogs of 2013

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Top 10 Familyllb’s Blogs of 2013

Well it has been another busy year for us and our bog has been honoured with a Clawbies Award as one of Canada’s top legal blogs.  Thank you to everyone for your continued comments and support.

Here are some of our Top 10 Blogs for 2013:

Number 10: Top 5 Things Self Represented Litigants should know about conducting a trial10.1

As a self-represented party, you must present your own case at trial. The purpose of this blog is to set out some practical and procedural matters with respect to the trial process in order to assist you in representing yourself.

 

Number 9: Selling the Matrimonial Home – What if One Spouse Won’t Co-operate?9 9 9

A recent decision called Ivancevic-Berisa v. Berisa shows what Ontario courts can do if one spouse refuses to co-operate in selling the matrimonial home post-separation.

 

Number 8: Husband Downgrades Job, Then Quits Altogether – But Support Stays the Same8

This was a case which shows that a voluntary change in circumstances – including a significant reduction in income – does not necessarily mean that a parent’s obligation to pay child support will be reduced correspondingly.

 

Number 7: 5 Ways to Make Sure Your Separation Agreement is Valid 7

Separation agreements can be a useful means by which separating spouses can take first steps toward unwinding their financial and family-related affairs by way of a mutual agreement. This Blog was a fan favorite in 2012 and continues to be popular as it provides a list of the top five ways to ensure that a separation agreement is valid and enforceable in Ontario.

Number 6: We’re Officially Separated – Can I Change the Locks on the House? 6

When a couple first separates under contentious circumstances, I will often get questions about what each party’s respective rights are in the early stages, i.e. before the long process has started of formally dividing up their assets and dealing with any support and child-related issues. One of the most common questions is whether the spouse who remains in the matrimonial home after separation can change the locks in order to exclude the other spouse.

Number 5: Texting and Family Law – Top 3 Things to Know5.1 bmp

Virtually everyone texts these days. In the context of Family Law disputes, it can be a useful tool for short, informative exchanges between separated spouses, for example to efficiently communicate on matters relating to the day-to-day care and custody any children they share.

But in the hands of some former couples, they can serve as a high-tech medium for thinly-veiled hostility, confrontation, acrimony and confusion.

 

Number 4: Top 5 Things to Know About the Canada Child Tax Benefit 4

This blog was also a fan favourite in 2012. Soon it will be time to start thinking about individual income taxes, and all of the various components that go into providing the federal government with a financial “snapshot” for the past year.

For separated or divorcing spouses with children, one of those components is the Canada Child Tax Benefit (CCTB).

Number 3:  What “Material Change” is Not: Some Real-Life (and Perhaps Surprising) Examples3

The concept of “material change” involves the notion that a court-imposed order requiring a parent or spouse to pay support may have been fair at the time it was handed down, but subsequently becomes unfair due to unforeseen circumstances. Where a later court finds that such “material change” has taken place, it may have the authority in the right circumstances to vary the initial order accordingly.

This determination of what constitutes “material change” is not always straightforward. Indeed, some scenarios may intuitively seem to qualify on first blush, but on closer examination turn out not to meet the legal standard at all.

Number 2: Top 5 Questions About Adultery and Divorce in Ontario2.1

Leaving aside the intriguing question of how adultery affects couples psychologically and emotionally (and why such powerful, successful people would jeopardize their marital relationships in this manner), the legal effect of adultery is quite clear.

In Ontario (as elsewhere in Canada), the laws relating to divorce based on a adultery are governed by the federal Divorce Act, which provides that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.” (Note that it must be the other party who commits the act: a spouse cannot apply for a divorce based on his or her own adultery).

Number 1: 10 Things You Should Know About Child Support1.11.11.1  1.1

1.2Again, this continues to be a very popular post and is evidence of the ongoing need that parents have to for information about child support.  This blog examines how all dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child. This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody).

Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

There you have it.  Some of our top Blogs for 2013.  Thank you  again to everyone who have visited our Blog and all your continued comments and support and thank you for the honour of a Clawbie Award.

What Should Courts Do With Self-Represented Litigants?

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What Should Courts Do With Self-Represented Litigants?

While I never intend deliberately to harp on the perils involved with family law litigants representing themselves in court, there has been a recent spate of cases that really illustrate the risks involved – and not all of them come from the Family Law dockets.

In an April 2013 criminal judgment in a case called R. v. Duncan the judge put a downright humorous spin on the narrative relating to a routine highway traffic infraction by the accused. Among other things, the judge admonishes the defendant for his indiscriminate use of the Internet in preparation for his stint at representing himself at trial. The judge wrote:

It has been said that, given enough time, ten thousand monkeys with typewriters would probably eventually replicate the collected works of William Shakespeare. Sadly, when human beings are let loose with computers and internet access, their work product does not necessarily compare favourably to the aforementioned monkeys with typewriters.

Thus it was that the trial began with Mr. Duncan objecting to us proceeding on the basis that I had no jurisdiction over him. Mr. Duncan provided me with an “affidavit of truth”, a rather substantial volume that appeared to me to be the result of somebody doing a Google search for terms like “jurisdiction” and the like and then cobbling them together in such a way that it makes James Joyce’s Ulysses look like an easy read. This hodgepodge of irrelevancies relied upon by Mr. Duncan was one of the misbegotten fruits of the internet. Finding it was a waste of Mr. Duncan’s time; printing it was a waste of trees and my reading it was a waste of my time and public money.

..

Mr. Duncan did not strike me as a fool and individual acts seldom define people, but the red binder he offered to the officers and the “affidavit of truth” he offered to me in court were regrettable descents into foolishness and Mr. Duncan would be well-advised to be more discriminating on what parts of the internet he models himself upon in the future.

The judge in R. v. Duncan also refers to a case – now famous in legal circles at least – called Meads v. Meads which was rendered by an Alberta court last year. That case resulted in a 700-page court decision which dealt at length with what the judge defined as “Organized Pseudolegal Commercial Argument Litigants”, who are essentially vexatious litigants – usually self-represented – who “employ a collection of techniques and arguments promoted and sold by ‘gurus’ (as hereafter defined) to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.”

Certainly the spectrum of self-represented litigants is quite large, and can vary greatly in terms of the litigants’ preparedness, familiarity with court processes, and individual objectives. (And in Family Law, the decision to try to avoid hiring a lawyer is usually cost-driven, rather than ideologically motivated.)

Still, it begs the question: Should courts have formalized processes in place for dealing with self-represented parties? What are your thoughts?

For the full text of the decisions, see:

R. v. Duncan, 2013 ONCJ 160 (CanLII)  http://canlii.ca/t/fwsm0

Meadsv. Meads, 2012 ABQB 571 (CanLII) http://canlii.ca/t/fsvjq

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 us at www.RussellAlexander.com.

Top 10 Things Self Represented Litigants Should Know About Evidence at Trials

Top 10 Things Self Represented Litigants Should Know About Evidence at Trials

You should avoid representing your self at trial.  Always seek legal advice and assistance from a lawyer.  If you chose to represent your self at trial here our list of the top 10 things you should know about evidence at trial:

 

1. Questioning Witnesses
When witnesses are asked questions, certain rules have to be followed. One set of rules applies when you are asking questions of witnesses you have called. When a party questions a witness they have called, this is referred to as “examination in chief’. During the examination in chief of your own witnesses, you are not permitted to ask “leading” questions, unless you are questioning the witness about introductory things or matters that are not in dispute. A leading question is a question that suggests the answer within the question itself. For instance, the question “You did not go to the bank, did you?” is a leading question because it suggests its own answer; that the witness did not go the bank.

Another set of rules applies when you are questioning witnesses that the opposing party has called. This is called “cross-examination”. You may cross-examine the witnesses called by the opposing party, although there is no obligation to do so. In cross-examination you are entitled to put suggestions to the witness of what you want the witness to agree with (see above example of a leading question). Generally, the purpose of cross-examination is to test the credibility of the witness and to bring out evidence favourable to your defence.

After a witness has been cross-examined, the party that called the witness may, but does not have to, ask additional questions to clarify or explain matters that have come up in cross-examination. This is called re-examination. When it is finished, the witness’ evidence is complete.

Examination in chief always comes first, then cross-examination and then any re-examination. The trial judge may then ask questions of the witness.
It is important to note that questions asked in court are not evidence and do not form part of the evidence called at the trial. Only the answers to questions are evidence that the trial judge will consider.

Whenever you ask the witness a question, you should allow the witness to finish his or her answer before asking the next question. A record is made of everything that everyone says. If two people talk at the same time, it makes it very difficult to obtain a true and accurate record of the testimony of the witnesses.

Further information as to how to cross-examine a witness is set out below under the headings “Cross-examination” and ” Prior Statements”.

2. Cross-examination

As described above, you may cross-examine witnesses called by the opposing party. Cross-examination is an opportunity for you to ask questions that are intended to draw from the witness something relevant, something that is important in deciding the case and that is of use to your case against the opposing party.

During the cross-examination, it may helpful for you to ask questions about:

• the ability and opportunity that the witness had to observe the things he or she tells
the court;

• the ability of the witness to give an accurate account of what he or she saw and heard; and

• whether the witness has any reason to be biased or prejudiced, or has an interest in the outcome of the case (note that this is obviously true for the applicant and the respondent).

Cross-examination is not an opportunity for you to argue with a witness or give evidence yourself. You should put your view of the facts to the witness in the form of a question. For example, you may ask the witness, “Do you agree that I did not see the children during the month of July?”

In fact, if you intend to contradict a witness by the evidence given by you or a witness you intend to call, you should put that evidence to the witness during your cross-examination so that the witness can give his or her version of the facts. If you fail to do this, the trial judge may give less weight to the evidence that you lead that contradicts the witness because the trial judge will not have an opportunity to hear what the witness would havf3 said about this contradiction.

3. Prior Statements

Witnesses may have made sworn or unsworn statements at a prior time. For example, the parties will likely have sworn affidavits, including a financial statement and may have been questioned prior to trial. You may use these affidavits, financial statements and transcripts when you cross-examine the witness who made the statement.

If the witness said something different in the earlier statement or sworn evidence than what the witness is saying at trial, you may cross-examine the witness on the prior statement. If the witness said something favourable about your case in a prior statement, you can ask about that. There is a procedure you must follow to do this.

First ask the witness if the witness recalls making the statement, swearing the document in question or if they recall attending for questioning and answering questions under oath (whichever applies). Next, read the prior statement in the document or the questions and answers from the transcript to the witness. Ask the witness to confirm that the statement was made under oath (if applicable) and then ask if he or she recalls saying it, and ask if it was true.

If the witness says the earlier statement was true, the earlier statement is evidence for the truth of that statement. If the witness says it is not true, then the earlier statement may be used only to assess the credibility of the witness, by showing that the witness said something different in the past.

Do not try to prove a prior conflicting statement unless the contradiction in the evidence is serious.

4. Summoning Witnesses

If you are concerned that any of your witnesses will not show-up at court, you should arrange to serve them with a summons (Form 23). You will need to provide the necessary witness fee in accordance with Rule 23(4). Once called to testify, each witness will take the witness stand and be sworn or affirmed. If the trial judge has made an order excluding witnesses from the courtroom until they testify, you must keep your witnesses out of the courtroom until they have given their evidence (as already stated, you must also not tell them about evidence already given during the trial).

You should not call witnesses unless the evidence they can give the court will assist your case or contradict the opposing party’s case.

Always remind your witnesses to bring with them any documents or exhibits they might have relating to the case that you will want to enter into evidence when the witness testifies.

5. Documents as Evidence

Documents that are admissible as evidence are tendered as exhibits during the trial. In very general terms, a document is admissible if it is relevant to the case and is proven to be genuine, i.e. it is what it appears to be, or it is introduced pursuant to an agreement reached beforehand by the parties. Ordinarily, any document sought to be put into evidence and marked as an exhibit must be identified by a witness under oath. Public records and the like are admissible in accordance with the provisions of the Ontario Evidence Act. You can find this statute on the Ontario E-Laws website: http://www.elaws.gov.on.ca/index.html

You may use as evidence any documents that are admissible either when you testify or when you are questioning a witness who can identify and testify as to the nature of the particular document, for example, that it is a letter the witness received. If there is any dispute about the admissibility of a document, the trial judge will hear submissions and rule on the admissibility of the document. If you propose to present any documents in evidence, please bring the originals, if possible, as well as at least three copies.

6. Failure to disclose documents

If you failed to disclose documents to the other party, refused to answer certain questions during any questioning before trial that was done pursuant to Rule 20, failed to correct answers given on any questioning before trial, or failed to serve an expert report (see “Expert Witnesses” below), you will not be permitted to provide the information refused, the corrections, or the documents or report not disclosed, as evidence in your case unless you are given permission by the trial judge to do so. The failure to disclose evidence before trial could result in a decision of the trial judge to prevent you from calling the evidence, or the trial could be adjourned, or you could be ordered to pay costs.

7. Reading Opposing Party’s Answers into Evidence

Pursuant to Rule 23(13), an answer or information given during or following questioning of a party, pursuant to Rule 20, may be read into evidence at trial if it is otherwise proper evidence, even if the opposing party has already testified at trial.

 8. Objections

The trial judge is entitled to question the relevance of all evidence and to control any attempt to introduce inadmissible evidence.

At any time during the questioning of witnesses by the opposing party, you have the right to object to the questions asked or to the introduction of documents put to the witness before they are marked as exhibits. If you object to a question, simply stand. When the trial judge calls upon you, state the reason for the objection. The trial judge will hear submissions from you and the opposing party about the admissibility of the evidence and the trial judge will make a ruling. If you object to a document being entered as an exhibit by the other party, the same procedure applies.

It is the duty of the trial judge to decide, on the basis of the established rules of law, what evidence may properly be put before the court. Once the trial judge has made a ruling, it is final in the trial and you must accept it and not continue to argue about it.

9. Hearsay

Normally, the only evidence a witness can give is what he or she personally saw or heard. Accordingly, it is important that you understand that you cannot give evidence or ask your witnesses to give evidence about what another person said if you are introducing that evidence for the purpose of proving the truth of the statement. This is known as hearsay evidence and it is generally not permitted, unless the other person who is alleged to have made a particular statement is the opposing party or a witness that will definitely testify at the trial.

Hearsay evidence may be admitted if the evidence is necessary and reliable.

• “Necessary” means the evidence is not readily available; for example, the person who made the statement has died or is seriously ill.

• “Reliable” means the statement is trustworthy because of the circumstances under which it was made.

There is an exception to the hearsay rule when the only purpose in introducing the statement of a person who is not going to testify is to prove that the statement was made, not that the statement is true. If that is the purpose of this evidence, let the trial judge know this when the evidence is introduced.

10. Expert Witness

You may call experts to testify on any issue if you have complied with Rule 23(23) in giving notice. Unless the opposing party consents to the introduction of the expert report at trial, you will have to call the expert as a witness at trial.

Expert evidence is usually introduced where the expert can provide information to the court, which is outside the experience and knowledge of the judge. Therefore, the expert must possess special knowledge that goes beyond that of an ordinary judge. The expert’s opinion must also be related to a fact in issue that, as a matter of human experience, will assist this court in resolving these issues.

An expert witness must first be qualified as an expert in his or her field, either because of his or her education and/or because of his or her experience and personal knowledge. If qualified, the expert will be permitted to express opinions in the field of his or her expertise. If you intend to object to the qualification of an expert witness, you should tell the trial judge. You will have an opportunity to cross-examine the expert on his or her qualifications and then to make submissions before the judge decides if the expert is qualified. If the judge decides that the expert is qualified, the expert will testify.

An expert does not replace the function of the trial judge as the trier of fact. The expert cannot make decisions about the various claims.

Remember it is never a good idea to represent yourself.  Try to get some legal advice and assistance before chosing to conduct your own trial.

This blog was based in part on a hand out some Ontario Superior Court Judges provide to self represented litigants at the commencement of their trials.

Top 5 Things Self Represented Litigants should know about conducting a trial

Top 5 Things Self Represented Litigants should know about conducting a trial

 As a self-represented party, you must present your own case at trial. The purpose of this blog is to set out some practical and procedural matters with respect to the trial process in order to assist you in representing yourself.

In providing you with this information, we do not assume any responsibility to provide you with legal advice. Similarly, the judge who will be conducting your trial will not be able to give you legal advice. The judge must not only remain impartial, but must also be seen by all of the other parties to be impartial.

This initial blog cannot possibly cover all the things you need to know about conducting a trial, nor can it begin to replace the advice and assistance that would be available to you if you had legal counsel. Accordingly, you are urged to obtain legal information and legal advice to the extent you are able.

It is important to remember that you are fully responsible for the presentation of your case to the court. You cannot relieve yourself of this responsibility by simply relying on these comments or by relying on the fact that you are not represented by counsel.

If you have questions at any time, you should let the trial judge know.

All references in this blog to Rules are references to the Ontario’s Family Law Rules. Similarly, references to Forms, are Forms referred to in the Family Law Rules. Both the Forms and the Rules are available on the Ontario Superior Court Website: http://www.ontariocourts.on.ca/scj/en/famct.

So here we go, here’s our top 5 things you need to know about conducting your own trial:

1. Burden of Proof

If you are the applicant, the burden of proof will be on you to prove the claims in your Application. If you are the respondent, the burden of proof will be on you to prove any claims in your Answer. All claims must be proven on a balance of probability, i.e. greater than 50%.

 

2. Opening Statements

At the start of the trial, the applicant is entitled to make an opening statement outlining the background to the applicant’s claims against the respondent and a summary of the evidence that the applicant intends to call.
After the opening statement of the applicant, the respondent may also make an opening statement, outlining the defence to the applicant’s claims, the background to any claims being made against the applicant and a summary of the evidence that the respondent intends to call. A respondent may choose to wait to make an opening statement until after the close of the applicant’s case.

You are not required to make an opening statement. The choice of whether to make an opening statement will be solely up to you.

You must not interrupt the other party’s opening statement even if you disagree with parts of it.

What is said in the opening statements is not evidence. If what you say in your opening statement is not borne out by the evidence that is subsequently presented, or is contradicted by that evidence, then what you said in your opening statement will be ignored by the trial judge. The sole purpose of an opening statement is to enable the trial judge to better follow the evidence as it is called.

 

3. Procedure for Introducing Evidence

After the opening statements, the parties introduce the evidence that they each rely upon. Evidence may consist of testimony from witnesses or the introduction of documents.

If you are the applicant, you will have the right to testify and call witnesses to give evidence in support of your case first. Once the applicant’s case is closed, the respondent has the right to testify and call witnesses to give evidence in support of the respondent’s case.

During your evidence and the evidence of any witnesses that you call, you may produce documents that you or your witness are able to identify and those documents may be entered as exhibits in the trial.

The opposing party may cross-examine each witness that you call. You will have the right to re-examine the witness to clarify matters raised by the cross-examination. You may not raise issues during re-examination that were not discussed by the opposing party during cross-examination.

After your last witness has been called, you will close your case.

In calling witnesses in support of your case, the process outlined in the section “Questioning Witnesses” below will be followed. The introduction of documents as exhibits is dealt with in the section “Documents as Evidence” below.

If you decide to testify, it is customary for you to be the first witness called in your case. If you decide not to testify, you may still be called as a witness by the opposing party pursuant to Rule 23(11). You will be cross-examined by counsel for the other party or the party, (if that party is also self-represented). You will be required to answer all relevant questions subject to certain limitations.

Before you testify, you will be asked to swear an oath or to affirm that you will tell the truth. If you deliberately lie under oath, you may be subject to a charge of perjury, which is a separate criminal offence that bears its own separate penalty.

Because there will be no one in front of you asking questions during your examination in chief (see below under “Questioning Witnesses”), you must plan ahead what you will say. You must rely on your memory rather than reading a prepared statement of evidence. If you need to look at a document created at or about the time of the events in question, in order to remember details, you must first ask the trial judge for permission to do so. You will be required to tell the judge what the document is and why you need to look at it so that the judge can determine if it is permissible. If you want to ensure you do not forget to cover everything, a written outline of the topics that you want to testify about can be used, but you will have to show it to the trial judge and the opposing party first.

If you testify you must be very careful to keep in mind the distinction between “evidence” and “submissions” (see section below entitled “Closing Submissions” for more detail). When in the witness box you must restrict what you say to what you personally saw, heard, did, received, et cetera. You cannot make submissions from the witness box. If you testify, once your evidence as a witness has been completed and you have left the witness stand, you can no longer give evidence without permission from the trial judge, unless you are entitled to give Reply evidence, as set out below.

In essence, you will be heard by the trial judge in only two ways: either as a witness giving evidence from the witness box, or as a self represented party making submissions from the counsel table. You cannot combine the two and must at all times maintain this distinction.

If you do not call witnesses and do not testify, then the decision of the trial judge will be based on the evidence introduced by the other party alone. However, the other party will likely ask the trial judge to use the fact you did not call evidence to conclude that the reason you did not testify or call a certain witness is because had you done so, the evidence given would not have been favorable to you.

 

4. Reply Evidence

If the respondent decides to call evidence, after all the respondent’s witnesses have been called, the applicant may, in certain limited circumstances, be permitted to lead further evidence to reply to and rebut the evidence that the respondent has introduced. Such evidence is strictly limited to the purpose of replying to evidence of the respondent and may not include evidence that should have initially been part of the applicant’s case. If the respondent has made a claim against the applicant, the applicant will be entitled to call evidence to defend the claim in reply.

If the applicant is permitted to call reply evidence, the same procedure will be followed as was used for calling other evidence.

 

5. Closing Submissions

After all the witnesses have been called, both parties will have an opportunity to address the trial judge to make submissions about what the trial judge’s decision should be, based on the testimony that the witnesses have given and the contents of the documents that have been marked as exhibits. The applicant proceeds first, followed by the respondent. The applicant will have an opportunity to reply to submissions made by the respondent (this is different from “Reply Evidence”). You make your closing submissions from the counsel table.

It is important to remember that it is not open to you during your closing submissions to refer to matters that have not been referred to in the evidence. The purpose of your submissions is to outline your claim or defence and to review the evidence that supports your claim or defence and to point out the shortcomings in the evidence led by the opposing party.

 

Summary

So that is our top 5 things you should know if conducting your own trial.  We hope this helps.  Also remember to consider whether or not witnesses at your trial should be excluded. 

When the trial begins, if you or the opposing party asks the trial judge for an order excluding witnesses, the judge will likely grant the order. In that case, except for you and the opposing party, all other witnesses will be asked to stay outside the courtroom until they are called to give their evidence. This is done in order to ensure, as much as possible, that a witness does not change his or her testimony in response to hearing the testimony of some other witness.

If such an order is made, you must not discuss any of the evidence given at the trial with any of your witnesses before they are called to testify. You must also ensure that your witnesses are aware of the order and do not discuss their evidence with anyone until after the trial is over.

Remember it is never a good idea to represent yourself.  Try to get some legal advice and assistance before chosing to conduct your own trial.

This blog was based in part on a hand out some Ontario Superior Court Judges provide to self represented litigants at the commencement of their trials.

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

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