What Role Do Courts Play In Assisting Self-Represented Litigants?

Written on Behalf of Lex Arbesman Legal

Getting separated or divorced can be financially stressful in addition to the emotional stress that comes with it. Some people might look to save money by forgoing hiring a lawyer and representing themselves in court. While the intentions behind doing so may be all well and good, it can often lead to a drawn-out legal process that may end up costing the person more than what they set out to save. But what role does a judge play in such situations? A recent decision from the Ontario Court of Appeal looks at how far a judge must go in assisting self-represented litigants.

Leading to the Court of Appeal

The case landed before the Ontario Court of Appeal after a highly contentious trial involving two self-represented parents resulted in the lower courts appointing lawyers on their behalf (a role known as “amicus”).

The case began when the mother brought an application for an order for custody of the parties’ three children, while also prohibiting access (or in the alternative, limiting to supervised access). The mother claimed that the father lived in Bermuda and there was a chance he would not return the children.

The mother hired and dismissed five lawyers before deciding to represent herself. The court eventually appointed an amicus on her behalf. The mother did not support the appointment, but she did cooperate with her amicus. The father was appointed an amicus after he ran out of money halfway through the trial and could no longer afford to pay for his lawyer.

The trial ended up completing in lower courts with both amicus serving, but the court was still asked to determine what the principles were in governing such appointments.

The court’s analysis

The court noted that the precedent governing the appointment of an amicus comes from a 2013 Supreme Court of Canada decision. The court wrote,

“[C]ourts may appoint an amicus only when they require his or her assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions.” Adding, “once appointed, the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings.”

While the Supreme Court recognized that parties have the right to self-represent, trial judges are also responsible for ensuring a trial progresses at a reasonable rate. The court wrote,

“There are situations in which the appointment of amicus might be warranted, such as when the self-represented party is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice.”

The court of appeal added its own thoughts, writing,

 It is no longer sufficient for a judge to simply swear a party in and then leave it to the party to explain the case, letting the party flounder and then subside into unhelpful silence. As this court has noted, ‘it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence’ the court added ‘In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case, a trial judge requires the necessary evidence on which to base a sound decision and getting the evidence can be difficult when a party is unrepresented, is unfamiliar with the process and the venue, or is tongue-tied for other reasons. Recognizing this reality, a common practice has developed in which trial judges walk a self-represented party through the essential documents, giving the party every opportunity to explain under oath, line by line, his or her pleading, financial statement, and any pertinent documents, and doing the same with respect to the other party’s pleading, financial statement, and pertinent documents, requesting the party’s responding position and evidence. Once the evidence of a party has been received, then the other party may cross-examine.”

Ultimately, we feel you’re best off getting experienced legal assistance from the outset of a family law matter in order to make sure your issue is handled as quickly as possible and with your best interests in mind. At Lex Arbesman Legal we are dedicated to protecting our clients’ interests and obtaining exceptional results in a cost-effective manner. Contact the knowledgeable, effective, and compassionate family lawyers at Lex Arbesman Legal online or at 416-481-5604 to book a consultation.