Litigant decries ‘post-traumatic court disorder’

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

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."

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