Self-Represented Litigants, Self-Help, and Family Justice Reform
Megan PhyperFriday, October 25, 2019
The family law system affects individuals and their families in diverse ways. One common thread is that family law disputes tend to be emotionally charged and affect people in the long-term.[1] Due to the nature of family law problems and the fact that they often involve important relationships, this particular legal problem type benefits significantly from expedient, mutually beneficial resolution.
The importance of family law issues notwithstanding, there is an increasing number of self-represented litigants (SRLs) appearing in family law courts in Canada and elsewhere. A 2012 report by the Canadian Forum on Civil Justice (CFCJ) suggests that the number of unrepresented litigants for family matters in Canada could be as high as 50%.[2] With recent funding cuts to Legal Aid Ontario, the number of self-represented litigants in family court is likely to rise further.[3]
Even before these cuts, the number of self-represented family law litigants appearing in Canadian courts had been rising.[4] The main reason for this rise in SRLs is an inability to pay for representation. However, there also various personal reasons why people may represent themselves. Some people have a “do it yourself” attitude, while others may feel that having a lawyer will not lead to a significantly better outcome than they could secure for themselves.[5] One way that justice services and programs have responded to this increase in SRLs is by developing legal information tailored for individuals without lawyers. This process can lead to even more people representing themselves because they see that there are accessible services available.[6]
Self-Representation and Family Law
Given the large number of SRLs in family court, an important question is how do they fare? Jennifer Leitch, a research fellow at the Canadian Forum on Civil Justice, explored this question by conducting interviews at a self-help legal centre in Downtown Toronto.[7] Her research found that SRLs often struggle when they come up against trained and experienced lawyers. Some unrepresented litigants felt that the lawyers were uncooperative, and in response they felt intimidated and powerless.[8] The knowledge imbalance between counsel and SRLs caused anxiety among litigants who felt that they would be manipulated by lawyers who have greater legal expertise than them.[9]
Research has demonstrated that not only do SRLs have difficulty working with opposing counsel, they also struggle to effectively resolve disputes in family court. The Harvard Access to Justice Lab conducted a randomized control study on the effectiveness of legal representation for people seeking a divorce.[10] They randomly divided participants into two groups, those who received assistance from pro bono lawyers and those who were referred to self-help resources. The results are startling. Participants with representation in family court were 87% more likely to successfully divorce than those who were only offered self-help resources. Three years after the study began, 45.9% of people who received representation had terminated their marriage, compared with only 8.9% of people who used the self-help assistance.[11]
Similarly, a small research project conducted in 2012 by a student at the University of Windsor Faculty of Law identified numerous challenges to filling out court forms to file for a divorce as an SRL.[12] The project was completed as part of a larger research initiative by the National Self-Represented Litigants Project on the experience of SRLs in Canada. The goal of the sub-project was to assess the length of time required to complete family law forms to initiate a divorce or separation. The forms were completed for three provinces— Alberta, British Columbia, and Ontario. It should be noted that the research assistant tasked with this assignment was, at the time, a law school student who had recently completed a course on Family Law and Civil Procedure. Overall, she experienced difficulty in understanding the language of the forms, in choosing the correct form, and in identifying the next steps in the process.
Unsatisfactory resolution of family law problems can have serious effects on individuals lives. They can lead to health problems, stress, emotional issues, and relationship strain among families.[13] For example, victims of domestic violence who cannot successfully divorce their partners may continue to experience serious impacts to their health and emotional well-being.[14] Children can also be deeply affected by parental conflict and it can lead them to act out, have higher levels of aggression, and have problems resolving disputes.[15] The serious psychological effects of unresolved family law problems demonstrates the need for effective and timely dispute resolution.
How Do We Resolve This Issue?
Many lawyers advocate for more self-help resources to allow SRLs to better navigate the family court system. However, the research from Harvard demonstrates that self-help resources are not always sufficient for the timely resolution of family law disputes.[16] At the same time, representation is not an option for everyone, as legal aid is only available to a fraction of low-income earners who experience legal problems. Additionally, even among those who qualify, legal aid is only applicable to a narrow set of family law problems. We need to find other solutions that can bridge the existing gap in legal services for family disputes. What are the options to resolve this issue? Three possible actions offer promise as ways of increasing access to justice for SRLs in the family law system: the use of non-lawyers to provide lower-cost family law services, expanded use of alternative dispute resolution, and the modernization of the courts.
Some advocates for family justice reform support the integration of non-lawyers to provide assistance with family law matters. Since non-lawyers, such as paralegals, can deliver services at lower rates than lawyers, the hope is that people would utilize those services instead of representing themselves. In the recent Law Society of Ontario election, paralegals pushed for an expanded scope of practice, so that they can perform more tasks done by family lawyers.[17] This would allow paralegals to provide legal services at a lower cost than traditional family lawyers, creating a more accessible option for people who cannot afford to pay lawyers rates.
Broader adoption of rules that allow non-lawyers to represent a party in family court may not be as far away as one might imagine. Non-lawyers are already allowed to appear as representatives in Ontario family court.[18] Furthermore, British Columbia allows designated paralegals, who are supervised by a lawyer, to appear at family law mediations. Even if they are not used to provide representation, non-lawyers can help assist litigants in other ways. Other forms of legal support, such as directing SRLs to the correct court forms, guiding them through the legal system, and providing general advice can be helpful.
As relates to the second possible reform –expanded use of alternative dispute resolution in family law—a 2017 report by the Canadian Research Institute for Law and the Family (CRILF) highlights the benefits of four methods of dispute resolution to resolve high- and low-conflict family law problems. The study, which included a survey of family lawyers practicing in Ontario, Nova Scotia, Alberta and British Columbia, compared mediation, arbitration, collaborative settlement processes and litigation based on a range of criterion including cost, length of time to resolve problems, and client satisfaction.[19] Although litigation is commonly used to resolve family law problems, most lawyers agreed that, in some circumstances, one or more of the other three processes could offer more cost-effective, timely, mutually acceptable ways to resolve family law problems.[20] In fact, the survey found that except in high-conflict situations, such as violence or abuse, many lawyers did not feel that litigation was the ideal form of dispute resolution.[21]
Manitoba presents a worthwhile case study for this approach to family law reform. The Family Law Modernization Act directs a significant portion of family law cases out of the court system and toward “resolution officers” who, in cases of a separation or divorce, help couples come to an agreement in a less adversarial manner.[22] Only cases involving actual or threatened violence will be streamlined into the court system. A major benefit of this approach is the reduced financial strain on participants who can ideally avoid long, drawn-out litigation. Another important benefit is that it achieves a more conciliatory process. The winner/loser dynamic of litigation can harm ongoing relationships between family members who likely need to sustain long-term communications with one another.[23]
A third possible action is to modernize court processes to increase accessibility. Technology could prove to be a helpful and inexpensive way to address some aspects of the dispute resolution process for SRLs. A new project led by University of Ottawa professor Amy Salyzyn, that will explore how technology can be used to assist the public with court forms,[24] promises to provide much-needed evidence-based research to help inform the ways that technology can facilitate access to justice through the formal justice system. The project will provide data that could help inform a re-design of court forms to make them more user-friendly and help create paperwork that is more accessible to self-represented litigants. While people can often understand the words on court forms, they may struggle to understand what they are supposed to do with the form and how to fill it out. Being able to fill out court forms online, along with informational guides and videos in multiple languages could help SRLs to better complete their own forms.[25]
A View to the Future
In response to concerns about the effectiveness of the family justice system, some provincial governments are in the process of reform. Manitoba recently passed legislation creating major changes in how the province resolves family law disputes.[26] Similarly, Ontario and Quebec announced over the summer that they would explore possible changes to family law.[27] However, it remains to be seen how these reforms impact the family justice system and whether they create changes that help support unrepresented litigants. Research clearly demonstrates that the current system is not meeting the needs of SRLs. Until changes are made, SRLs will continue to experience problems navigating the family court system.
[1] Government of Manitoba, Modernizing Our Family Law System: A Report from Manitoba’s Family Law Reform Committee (Government of Manitoba, 2018) at 2, online: Manitoba <https://www.gov.mb.ca/justice/pubs/familylawmodern.pdf > [Modernizing Our Family Law System].
[2] CFCJ, “The Cost of Justice: Weighing the Costs of Fair & Effective Resolution to Legal Problems” at 4, online: CFCJ <https://cfcj-fcjc.org/sites/default/files/docs/2012/CURA_background_doc.pdf>; Rachel Birnbaum, Nicholas Bala & Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants” (2013) 91:1 Can Bar Rev 67 at 71, online: <https://cbr.cba.org/index.php/cbr/article/view/4288>.
[3] Michael Spratt, “Ford’s Cuts to Legal Aid Will End Up Costing Ontario Way More Than They Save” CBC News (11 June 2019), online: <https://www.cbc.ca/news/opinion/legal-aid-1.5169428>.
[4] Birnbaum, Bala & Bertrand, supra note 2 at 71.
[5] Ibid.
[6] Ibid.
[7] Jennifer A Leitch, “Lawyers and Self-Represented Litigants: An Ethical Change of Role?” (2018) 95:3 Can Bar Rev 669 at 679, online: <https://cbr.cba.org/index.php/cbr/article/view/4429>.
[8] Ibid at 680.
[9] Ibid at 683.
[10] A2J Lab, “Divorce”, online: a2j lab <https://a2jlab.org/current-projects/smaller-studies/divorce/>; Ellen Degnan et al, “Trapped in Marriage” (2018), online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3277900>.
[11] Degnan et al, supra note 10 at 5.
[12] Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (National Self-Represented Litigants Project, 2013) at 56-58, online: NSRLP <https://representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf>.
[13] Trevor CW Farrow et al, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum for Civil Justice, 2011), online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.
[14] See for example, Jennifer S Rosenberg & Denise A Grab, Supporting Survivors: The Economic Benefits of Providing Civil Legal Assistance to Survivors of Domestic Violence (Institute for Policy Integrity, 2015), online: Institute for Policy Integrity <https://policyintegrity.org/documents/SupportingSurvivors.pdf>.
[15] John-Paul Boyd, “It’s Not Just Them: The Social and Economic Consequences of Family Conflict” Slaw (22 May 2015), online: <https://static1.squarespace.com/static/5b6db734b1059890c89e8172/t/5ba543cfe4966b0fdd51ff40/1537557456947/It’s+Not+Just+Them%3A+The+Social+and+Economic+Consequences+of+Family+Conflict+–+Slaw.pdf>.
[16] Three years after the studies randomization, 45.9% of the group with representation had achieved a termination of marriage, while only 8.9% of the group with self-help or low bono resources were able to achieve the termination of their marriage. Degnan et al, supra note 10 at 5.
[17] Anita Balakrishnan, “Paralegals push for family law reform in election” Law Times (18 March 2019), online: <https://www.lawtimesnews.com/resources/professional-regulation/paralegals-push-for-family-law-reform-in-election/263470>.
[18] Lisa Trabucco, “Lawyers’ Monopoly? Think Again: The Reality of Non-Lawyer Legal Service Provision in Canada” (2018) 96:3 Can Bar Rev 460 at 462, online: <https://cbr.cba.org/index.php/cbr/article/view/4480>.
[19] Joanne J Paetsch, Lorne D Bertrand & John-Paul E Boyd, An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods (Toronto: Canadian Forum on Civil Justice, 2017) a 1, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files//docs/Cost-Implication-of-Family-Law-Disputes.pdf>.
[20] Ibid at 56.
[21] Ibid at 54.
[22] Anthony Davis, “Manitoba working on family law reforms” Canadian Lawyer Magazine (7 May 2019), online: <https://www.canadianlawyermag.com/practice-areas/family/manitoba-working-on-family-law-reforms/276115>; Modernizing Our Family Law System, supra note 1.
[23] Modernizing Our Family Law System, supra note 1
[24] University of Ottawa, “Amy Salyzyn awarded grant for project studying public understanding of complex legal documents” (21 June 2019), online: UOttawa <https://techlaw.uottawa.ca/news/amy-salyzyn-awarded-grant-project-studying-public-understanding-complex-legal-documents>.
[25] Heather Douglas, “Court Forms: Should Most Forms Be Eliminated?” Slaw (7 August 2019), online: <http://www.slaw.ca/2019/08/07/court-forms-should-most-forms-be-eliminated/>.
[26] Davis, supra note 22.
[27] Mark Cardwell, “Quebec Gears Up for Family Law Reform” Canadian Lawyer (13 May 2019), online: <https://news.ontario.ca/mag/en/2019/07/review-of-family-and-civil-legislation-regulations-and-processes.html>; “Review of Family and Civil Legislation, Regulations, and Processes” (9 July 2019), online: Ontario <https://news.ontario.ca/mag/en/2019/07/review-of-family-and-civil-legislation-regulations-and-processes.html>.