Everyone deserves access to justice, whether they have the means to hire a lawyer or not. It's an increasingly important issue in family law, where the growing number of self-represented litigants (SRLs) is a clear indicator that the legal system is not working as it should.
In this column, I'll unpack the reasons behind the surge of people opting to represent themselves and offer some tips and guidance on how to be successful if you choose that route.
SRLs by the numbers
In 2012, the federal Department of Justice estimated that between 40 and 57 per cent of parties were self-represented when they appeared in family court. A 2013 study by the National Self-Represented Litigants Project, which looked at family-law applications in Ontario, found between 64 and 74 per cent of applications were filed by a person without a lawyer.
SRLs are reported to come from all income and education levels and may have various motivations. Sometimes a person's decision to represent themselves is born out of necessity: They don't have the resources to hire a lawyer, but they also can't qualify for provincial legal aid. In other cases, SRLs say they couldn't find a lawyer, had a negative experience with a lawyer in the past or believe they can do it themselves, according to the Department of Justice.
DIY lawyering not suitable in all cases
But there's another segment of family law litigant who has the resources to hire a lawyer but choose to represent themselves. They think that by doing some research on Google, they can adequately prepare themselves to argue their case in court.
If the other side is also self-represented, they may be right. But when self-reps go up against a lawyer who has spent three years in law school and completed the rigorous training required to be admitted to the Bar, their chances of a favourable outcome are slim.
According to the National Self-Represented Litigants Project study, the success rate of SRLs in motions and applications is just 12 per cent.
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If your family law case is fairly simple and straightforward, it might make sense to self-represent. But the cases that involve disputes around custody, access and child support are complex and often require significant court time.
Other types of cases that aren't good candidates for self-representation include:
- Complex financial and property matters, such as when one party owns a business
- Victims of physical or psychological abuse; in these cases, it's important to have counsel to advocate on your behalf
- A party suffering from a mental health issue.
Self-representation as a strategy
Sometimes people opt to self-represent for strategic reasons, and that strategy can backfire. In a 2019 case that took 17 years to conclude, the judge came down hard on a self-represented litigant, ordering her to pay $150,000 in costs for intentionally creating a series of delays at the expense of the other side.
There is nothing wrong with self-representation, said the judge in his ruling. What is wrong, though, is hijacking the proceeding at the expense of the other side (who has counsel) and then expecting mercy from the court when it comes to deciding costs.
I have experienced this in my practice where an SRL on the opposing side does everything in their power to waste time and money, which adds to the cost of the client's legal bills and results in delayed justice.
Resources to help SRLs
I realize it may sound counterintuitive for a family law lawyer to provide tips to self-represented litigants, but my hope is that by shining a light on some of these resources, SRLs will be better prepared, which will ultimately benefit everyone involved.
- The Advice and Settlement Counsel (ASC) program provides self-reps with help on discrete parts of their matters for $200/hour. It includes advice about potential settlements, drafting settlement terms, coaching on upcoming court appearances and preparing to-do lists to help self-reps understand which steps they need to take next in their matters. Beyond ASC, many lawyers provide similar services in their practices as well as coaching. If you have a limited budget, this is a great option to get some help preparing documents or getting ready for a motion.
- The Family Law Portal is a free, self-directed information portal designed to inform people of their rights and responsibilities and provide them with the information they need to make informed decisions.
- The Ontario Court of Justice has created a guide that provides useful information to help SRLs prepare for family law trials. It has direction around several important topics, including offers to settle, costs and getting ready for trial.
- Ontario's Family Law Rules outline the procedures that must be followed in court. Brace yourself; there are a lot of them but familiarizing yourself with the rules is important. If they aren't followed, any evidence you want to present in court might be excluded.
- CLEO's Family Law Guided Pathways are a free series of online interviews that help SRLs fill out the court forms needed for family law matters. The pathways ask questions and then populates answers into the required forms.