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Litigant decries ‘post-traumatic court disorder’

|Written By Yamri Taddese

Each time Rhonda Nordlander leaves the courthouse, she suffers an episode of what she calls “post-traumatic court disorder.”

‘It has traumatized me to have to go through this all the time,’ says Rhonda Nordlander. Photo: Laura Pedersen

Like many family law litigants in this country, Nordlander has found herself navigating the complex court system by herself. She’s been trying to get access to her children who live with her ex-husband. The do-it-yourself journey has been a downward spiral littered with frustration and failure, she says.

“It’s turned into something that’s way over my head.”

Stories like Nordlander’s are at the heart of a final report on self-represented litigants in Ontario, British Columbia, and Alberta. As part of her research, University of Windsor law professor Julie Macfarlane interviewed 259 self-represented litigants in the three provinces and 107 service providers such as courthouse counter clerks. Half of the self-represented litigants who participated in the study have a university degree.

Like more than 50 per cent of Macfarlane’s participants, Nordlander started out with counsel but later ran out of money. Also like many others, she turned to the Internet for help. But as Macfarlane’s study has found, self-represented litigants who “anticipated that the proliferation of online resources would enable them to represent themselves successfully became disillusioned and disappointed once they began to try to work with what is presently available online.”

While the majority of the self-represented litigants interviewed for the report have a university degree, many, like Nordlander, found the online forms incredibly difficult to complete if they found the document at all. The information online, according to Macfarlane, was heavy on legal information and lacked practical advice on filing, serving, negotiation techniques, strategies for talking to the other side, and presentation skills.

Litigants often came across referrals to other sites — “sometimes with broken links” — and found inconsistent information, the report notes. It was also difficult to distinguish which of an array of web sites were legitimate, according to the report.

But the point, says Macfarlane, is that “even the absolutely best web-based material — and we don’t have very much of that yet — is not a complete substitute for having somebody to talk to.”

Policies aiming at increasing access to justice put a big emphasis on the use of the Internet, but “what these people need is a friendly face, a helping hand,” Macfarlane notes.

“The sheer volume of information available on the Internet is problematic. It is often difficult for [self-represented litigants] to know which site to use and how to move from one to another without finding apparent contradictions or gaps,” the report states.

“Another problem is that it is clear from interviews that [self-represented litigants’] ability to navigate and utilize information and forms provided online is affected by their emotional condition as they proceed through a contentious matter.”

One of the results Macfarlane finds shocking was the sheer toll self-representation takes on people.

“I sometimes say that doing these interviews, which I did for the whole of last year, was a little like spending a year in grief counselling. I mean, I got to the point where I needed a break,” she says.

“What’s so interesting about this population [of self-represented litigants] is that there are so many of them but they’re all so isolated.”

As she roamed the family courts for her research, she found a “chaotic” atmosphere with tensions running high as many people, with their children in tow, tried to get a handle on their matters.

Nordlander, a receptionist at North Peel & Dufferin Community Legal Services in Brampton, Ont., knows all about that tension. Recently, she tried to bring a contempt motion against her ex-husband.

“I did it wrong,” she says.

“I wasted a whole bunch of time doing it wrong and when they told me how to do it, it just got so frustrating. I just threw my hands up in the air and said, ‘I can’t do this!’”

She adds: “It has traumatized me to have to go through this all the time. My mental health has suffered. It’s really something like post-traumatic court disorder.”

The case has been before more than a dozen judges, says Nordlander. Once, she notes, she asked for her ex-husband’s income disclosure in front of a judge. “The judge shuts me down because it’s not the right type of court or I have to bring another motion. I can’t just speak at the hearing. So this is all stuff I’ve learned.”

Nordlander was also surprised at how much time it took to represent herself. She has to take a lot of time off work, she says, which sometimes means a lower paycheque. At one point, she tried getting help from lawyers who offer unbundled legal services, but even that became unaffordable over time, she adds.

Over the weekend, Nordlander was at a conference on self-represented litigants attended by leaders in the legal community.

She was one of five self-represented delegates chosen to share their stories with law society leaders, Supreme Court Justice Thomas Cromwell, and other legal heavyweights. The group met in Windsor, Ont., to discuss Macfarlane’s report. Prior to the event, Nordlander says she was planning to make a point about legal aid. She has accumulated debt throughout her litigation, she says, adding it’s not fair that she doesn’t qualify for legal aid since the criteria considers only her income and not what she has borrowed.

Macfarlane says self-represented litigants need an orientation when they first walk into court. This orientation would be about what to expect, “not just procedurally but also emotionally,” she says. Many of the litigants she interviewed didn’t know about mediation as an alternate route, says Macfarlane.

Many study participants also described wanting a form of coaching, Macfarlane adds. Such coaching, according to the report, would help litigants manage the case themselves through practical advice on what to expect and what to say and do in court.

For more, see "Bar must examine its role in adapting to self-represented litigants" and "Making legal services by web, phone more useful."

  • Delmer O. B. Martin
    It all comes down to "who is serving who, and why"?
    For the time being our system is brutal because it is like the old analogy, "2 hungry wolves and a sheep having a meeting to decide what’s for dinner"? This scenario NEVER ends well for anyone, especially since I am a farmer and not an officer of the court, I am fully aware that when the sheep are all gone, the wolves will actually devour each other!The system is designed by itself and serves itself and its officers and LLC's and not the people! Prove otherwise!This is NOT what we the people want or need. We are not going to be best served by a typical political resolution because both the right and the left are corrupt because of their conflicts of interest.
    In addition, the problem with democracies is that the 49% are enslaved by the others. Is this really fair and just? Biblical Truth and Constitutional Freedom sounds much better to me but the real question is do we really have to start all over again?
  • Kathryn L. Smithen
    I've been a self-represented family law litigant and now practise family law. There is no substitute for legal representation. I wouldn't conduct my own surgical procedures or fix the brakes on my car. Watching an episode of Law and Order doesn't qualify you to argue your case in court. You do yourself - and your children - by not seeking legal advice. Services cost money and many practitioners offer reasonable fees. We're not all monsters and some of us actually do care about getting our clients out of the system as quickly and inexpensively as possible.
  • Chris Budgell
    Rarely do I see the discussion get anywhere near recognizing the real fundamental problems. Section 19 of the Criminal Code says ignorance of the law is no excuse. Therefore we are all presumed to know the law because it belongs to the people, not the lawyers, not the judges. Nice theory, too bad about the reality.

    If we are allowed to represent ourselves in presenting a case, why is the deliberation always in the hands of a brother or sister of the opposing professional counsel? The result is a profound and pervasive systemic bias. The independence of the judiciary is a fiction.

    In practise the laws do belong to the lawyers. The whole system was built by them, belongs to them and serves them to the detriment of the public interest.
  • PBH Ontario
    "The System". Those in the legal field can easily draw an analogy to the practice of medicine (it's becoming a cliche') in defence of the years it takes to build the extensive knowledge to practice law. Why on earth has the notion of "universal legal coverage" never been part of the discourse? The free market has a place but, is that place in crucial, life altering events?
  • MS Lynham
    Speaking only of the Alberta system , I believe that the steps taken to help self-reps are more than outstanding. Everyone with children must take the "Parenting after Separation" course that outlines not only what to be concerned about with your children but also a "road map" of the litigation process. To be clear, this map isn't complete but it does give some information on how the system works.
    All of our court forms for family law are online and most lawyers have problems filling in the forms as they were designed, apparently, to make it easy for the public to use them...we have duty counsel from Legal Aid available daily to assist SRLs in every court. We have free mediation respecting custody issues and lawyers who help SRLs negotiate new support amounts for their children. Our court system has been tweaked for the last 30 years and the problem that still remains is that an adversarial court system is not the place for family law disputes...we need a new model
  • K. Reinhart
    I agree. Although Alberta's system has made excellent changes, the adversarial system does not work in most family law situations. Mediation and other out of court settlement models assist greatly. It gets worse in situations where abuse (physical, emotional, mental, fiscal) has occurred and where there is a definite power imbalance between the parties. All the current processes, in these types of situations, revictimize the abuse victims and do nothing to empower them in the short term. In the long term, the abusers generally show the courts who they really are and things usually get rectified, but at the beginning it can really be a mess. Caucused mediation should be a regular practise for mediators dealing with abusers and abuse victims because to have to sit in the same room with the abuser can skew outcomes and subjects the abuse victims to continued abuse. We definitely need a new model!
  • P.C.
    The issue for Both SLRs & those represented by counsel, is the horrific wastes of time, abuses of process, and Judges who condone this! I know many represented clients who after spending tens upon tens of thousands of dollars in legal fees, do not even have disclosure from the other side, due to the games being played- outspend and outlast! Not sure who to feel more empathy for- those represented who spend fortunes, and do not necessarily achieve anything close to a reasonable solution, or those SRL's who meet the same result, but without the financial disaster.
  • Donald Duncan
    Family Law, like other litigation has become extremely process-oriented and time consuming.

    I recall being sent down, either as an articling student or 1st-year lawyer to Family Court in Ottawa, where I met my client, who had been charged with sexual assault on a minor, spent 15 minutes listening to the story, and then proceeded immediately to trial at 10:00.

    Naturally, the trial was over by 11 am - prosecutions case taking up half of it - and the decision was rendered immediately. Some judge must have been sympathetic to my plight - since an aquittal was the result.

    Such speed, efficiency, and lack of preparation would be unthinkable today, of course.
  • Gordon Brown
    Unbelievable! You spent 15 minutes listening to the story and then went in and represented this person? Do you think that you were fully prepared to represent this person? I think you got lucky and got an aquittal! How much you make for that hour and 15 minutes!!!
  • karen
    Being barked at in court,being willy nilly misled by court staff and processes, and having no access to understanding the court system, all create helplessness, all while dealing with the fail relationship is devastating.

    Merely being treated with respect and having courts undertake to inform litigants of their rights would go a long way to protecting litigants.

    Why isn't there time-limited free impartial mediation available, or available for a modest fee?

    Informing the parties at the outset of obvious limits on their case would also assist greatly.
  • Nathalie
    There is in fact free on-site mediation in many courts in Ontario or off-site mediation is available on a sliding scale through the court mediation program. It is a much better alternative to litigation most of the time.
  • Sheldon Tenenbaum
    My advice to Ms. Nordlander and others who can't afford lawyers:
    1. Appeal a certificate refusal to area committee (indepedant of LAO)
    2. Use the many free LAO paid advice lawyers, duty counsel, students and court staff at the family court - most of whom bend over backwards for unrepresented litigants.
    3. For a good guide on what to expect and how to handle family court see Judge Brownstone's "Family Matters"
    http://www.familymatterstv.com/
    4. Many in the private bar will offer free or low cost telephone referrals or consultations. Never screw up your own case when a professional can do it for you.
  • Theresa MacLean
    Oh Sheldon,
    I see you are still as funny as you were in law school!
    Seriously, though, I completely agree with the comments made by Frances Wood.
    Most of us completed seven years of university as well as articling and bar ad courses and then years of practising law. It is simply not possible to replicate that wealth of knowledge in any online information site.
    Like Ms. Wood, I would never think that I could fix my own car nor am I equipped to deal with handling my own medical issues. I don't know why people feel that it is somehow unfair, or the fault of the legal profession that navigating a court case, particularly one that you are emotionally invested in, is extremely challenging.
  • Frances Wood
    You don't see articles in which anyone suggests that there should be better information out there to help people rewire their own homes, fix their own cars, or do their own IT. Hiring a professional can be expensive, yes, but people should not be surprised that a lack of legal training leaves them ill equipped to be lawyers. What exactly do they think we learned in our undergraduate degrees, in law school, in articles and in the years since qualifying? Something they can learn by surfing the Internet? Yes, the law can be complex, as are out other professions. That's why there are lawyers, just as each profession has its qualified practitioners. I don't ask car mechanics to create accessible information to make it easier to fix my own car, or doctors to create a website to help me remove my own kidney at home. Information does not equal advice - my job is to give you the latter and all the web surfing in the world will never be a substitute for that.
  • Gordon Brown
    No articles out there but a ton of t.v. shows! Can't wait till they have some reality lawyer shows!!!! haha
  • Gordon Brown
    I would disagree with you. All Canadian laws are accessible to the public. Research the laws and then see if you can find any case law to refer too! Would save a small fortune because thats what lawyers believe they are worth! I had a lawyer tell me, "give me 1500 bucks and I'll get you off with a 1000 dollar fine". I said no I'll represent myself and he laughed and said, "I gotta see this". His jaw hit the floor when I walked out with a 600 dollar fine....ppfffft!!!
  • Walter Fox
    Since the problem for years has been a fathers problem,what does it tell us about the study and the article that the centerpiece is an mother?
  • Walter Fox
    I guess there are no fathers in this predicament.
  • Brian Koehli
    The great majority of SLRs appear to be in the Family Law area. Rather than excoriate lawyers for limiting access to justice, perhaps it is time to recognize that Law Courts are not the proper forum for dealing with issues of custody, support etc. There should be a specialized tribunal set up to deal with family law. Get it out of the courts.

    As a general comment, allowing SLR's to argue their case in a courtroom is like allowing a patient the unfettered use of a hospital O.R. to remove their own appendix.
  • Albin
    Family law absent children could be done at first instance with a psychologist, a notary, and a well-made Excel spreadsheet. Once children are involved, if the parents can't sort it out between them, it is going to be an awful mess, no matter what. The article is about gradations of the awful mess.
  • C. McLeod
    Although many may want a form of coaching, there are substantial liability risks for a lawyer who tries to assist a litigant by giving advice without having a detailed knowledge of the client's case. It is the lawyer's equivalent of giving medical advice for a complex condition, without even seeing the x-rays or doing an examination. I would be surprised if many lawyers would want to be involved in giving partial advice or assistance at just some stage in a litigant's case. There is a reason that we are encouraged to "know your client".
  • Gordon Brown
    "Know your client"? Where does this come from? How about when you walk into court and duty counsel says I will stand and talk for you? Does duty counsel know me? No they do not. I had an argument with a duty counsellor telling him in no way shape or form will he speak on my behalf. The only thing you know about me is my name and what I have been charged with because you just read it on a piece of paper! I speak and understand english perfectly and I will never hire a lawyer! Just what makes them think they are worth so much more per hour than your average hard working individual stuck in a minimum wage job? Or anyone in the "upper" class for that matter? All over the world the oppressed are rising up to rid their countries of corruption. My only hope is that I'm not too old to participate when it happens here!!
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