The rising number of self-represented litigants in Ontario’s family law arena has created obvious challenges to both the administration of justice and counsel. But what might not be so evident are the strategic advantages this growing group of splitting spouses have in the process, say lawyers in the field.
Can self-representation be an unfair tactic? In a word: yes.
With the new Family Law Rules came more steps that have to be taken in a proceeding. Put simply, it can cost a lot more to get divorced these days, and with that has come a jump in the number of self-represented litigants - along with other factors including a dearth of legal aid funds available to the majority.
And while on the surface it may look like the spouse with the lawyer in tow is Goliath in their story, in fact, the so-called Davids can be the “legal bullies,” said Georgina Carson, a partner at MacDonald & Partners LLP in a recent paper.
“As court proceedings become more protracted and expensive, the likelihood of self-representation increases,” said Carson in an Ontario Bar Association continuing legal education presentation she wrote with colleague Michael Stangarone.
“The family law lawyer must be vigilant in balancing the duty to vigorously advance his or her client’s interests with his or her duties under the Rules of Professional Conduct, and as an officer of the court.”
Carson says that while both the court and counsel owe a duty to the self-represented party, there is the potential of “abusive behaviours or tactics intended to prevent the opposing party from advancing his or her claims.”
There is a “definite” trend toward more self-represented litigants, says William Abbott, also a partner at MacDonald & Partners. And it’s all about money.
“If somebody’s in the middle or just about to start litigation, it’s my experience that most lawyers in the GTA will want a $10,000 retainer, $5,000 at the minimum.
If somebody is in the midst of a divorce, they know they’re going to pay child support, possibly pay spousal support, somebody is going to have to find new accommodation. Where are they coming up with another $10,000?” says Abbott.
Meanwhile, the legal aid threshold for qualification rules out that person in the middle class making between $60,000 to $100,000 so, “how do they pay for a lawyer?” Well, these days more and more, they don’t. And it can be a challenge for the family lawyer on the other side of the room.
“Even though the case law indicates that a person who decides to represent themselves is deemed to know the rules and they must act like a lawyer, that seldom tends to happen in court, and it ends up that the rules of evidence under the Family Rules, and the Evidence Act, are relaxed,” adds Abbott.
“So, hearsay tends to get in a bit more, the court will often help guide the self-represented litigant and help them make the case for them,” Abbott tells Law Times, explaining that “part of the reason may be to make any decision appeal-proof.”
He says sometimes if a lawyer is doing a trial or dealing with a motion, a judge will cut the lawyer off saying they’ve heard enough on a point and to move on. With a self-represented litigant, however, “it seems to be only in extreme cases that it happens.”
The surge in SRLs has resulted in court wait-times getting longer because, for example, these individuals don’t know how to conduct a trial or motion and “you end up responding to sometimes voluminous motion material that they serve on you, or completely irrelevant arguments that they make,” says Abbott.
He says there have been cases in which he’s had to bring a motion for direction from the court on how to deal with a matter involving an SRL. He says that if an SRL does indeed read the rules, they’ll see that a motion has to be served four days in advance of its hearing.
And then, “they’ll serve a 20-page affidavit four days in advance and we have to turn it around. Normally, with experienced counsel that would never happen; you agree when the motion is going to be in advance, you agree on the time for the exchange of materials, [but] self-represented litigants don’t do that for the most part.
They’ll simply pick a motion date - it doesn’t matter if you’re available or not. If a person was represented by a lawyer and the lawyer did that, barring in the case of an emergency, there would be costs that would be payable. Well, with self-represented litigants the costs argument doesn’t hold the same credence as it does when people are represented.”
There are, however, some bridges lawyers can build over these rough waters, with some ingenuity . . .
Abbott says he has a case dealing with a custody fight over a boy with a terminal illness. In 2006 a judge ordered shared parenting, the mother appealed and abandoned the appeal.
Then, “she started to bring motion, after motion, after motion, self-represented at this point.” Finally, he says he managed to have a single judge appointed to the case “so that the mother could not play these games with various, different judges.”
That judge ordered that the mother could not bring any motions until she received the consent of the court, which stopped the deluge, but not before a great deal of time had been squandered.
He says that in another case, the husband became self-represented after firing his lawyer.
“He went to court and complained that I wasn’t responding to his e-mail correspondence. I indicated to the judge that on average I was getting eight e-mails a day from this gentleman and there was no way I could keep up with that volume. What I did was I wrote to this man and I said that, ‘Every Friday I will read your e-mails. I will respond in one e-mail,’ and the court agreed that was reasonable,” says Abbott.
The problem for Abbott’s client was that she would have to pay for every time he responded to an e-mail from her husband. Could he have been doing it on purpose?
“I think that a lot of self-represented litigants do realize that their spouse is paying for my services and so they know, because they may have at one time retained a lawyer, the way the docketing system works [and] they will start running up the legal fees,” says Abbott.
He adds that in the case with the ill child, “there were times when we were going every single Thursday, six Thursdays in a row, from Toronto to Kitchener because this woman would lose in court and before I even got back into the office she’d already served us with another motion.
She would go to Kinko’s or another self-serve fax number, and fax the motion record to us, and we didn’t have a fax number for her, so we had to personally serve her or have a process server or courier go to her house, drop it off, and then file it with the court. So we got a court order so she could not serve us by fax unless she provided a fax number to us.”
Phyllis Brodkin, also a partner at MacDonald & Partners, says it’s difficult in the courts to deal with a self-represented litigant, but these days the “judges are trained and have ways to deal with the situation.” But where she’s finding it more troublesome is with mediation and arbitration when in the middle of things one side fires their lawyer.
“Now that is a real stumper when you’re in mediation with a self-represented litigant and the mediator,” she says. “Those are really difficult.”