Promoting Access to Family Justice by Educating the Self-Representing Litigant

Article excerpt

[Deborah Doherty, PHD, delivered these comments" at an Access to Justice panel at the University of New Brunswick, on October 28th, 2011. The panel followed the thirty-third Viscount Bennett Lecture by The Honourable Justice Cromwell.]

INTRODUCTION

Thank you for inviting me to sit on a discussion panel about Access to Civil and Family Justice at the Viscount Bennett Lecture. I am particularly pleased because it is not often that public legal education is included in discussions about improving Access to Justice. I appreciate the opportunity to share my reflections on this topic, along with my esteemed colleagues. I am also honoured to comment briefly on Justice Cromwell's keynote address, which promoted a more collaborative and strategic approach to accessing the civil and family justice systems. He suggested that the strain on the justice system might be alleviated if individuals were able to obtain the "knowledge, resources and services required to deal effectively with their legal matters" as early as possible.

I intend to focus on the "knowledge" component of this equation and the role of public legal education and information--what we refer to as "PLEI"--in creating access to the family justice system generally, and more specifically, in educating the growing number of individuals who are representing themselves in family matters. PLEI agencies believe strongly that access to information about the law is fundamental to a fair and accessible justice system, and many PLEI providers are non-profit organizations that exist for the sole purpose of promoting such access. Across Canada, PLEI groups are often acclaimed for disseminating high calibre, plain language law-related services and resources. (1) I would suggest checking the Justice Canada website (2) to find the contact information for many of these PLEI groups.

What is Access to Family Justice and is there a Nightmare?

Access to family justice clearly encompasses a broad range of legal resources, services and non-legal options for resolving family law disputes. For many, access to family justice is epitomized by access to a judge in family court. One does not have to look far to find reports, studies and articles that describe a nationwide "nightmare in family court". (3) Indeed, many scholars and legal professionals attribute this nightmare to the unprecedented growth in self-represented litigants (SRL) which is bringing family court proceedings to the brink of collapse. The negative impact reverberates throughout the justice process. (4) For example, the lawyers representing clients find it more difficult to negotiate with SRLs so more cases end up in the courtroom instead of being settled. Individuals who do engage legal representation are finding the legal process more expensive and frustrating than they anticipated. Not surprisingly, the individuals attempting to access the family justice system without legal representation are typically having a negative experience fraught with stress. (5) Regardless of the underlying reasons for self-representation, (6) the complexity of court forms and procedures and the lack of guidance through the process typically results in incomplete forms, inappropriate affidavits, missed deadlines, omissions related to swearing and serving documents, and utter confusion around presenting a case in court. (7) Many SRLs end up making costly and time consuming mistakes, or simply give up.

The importance of public legal education in helping SRLs in New Brunswick was noted in the Access to Family Justice Task Force Report. (8) This Report underscored the need to promote more timely Access to Justice in resolving family law disputes; expand use of alternatives to the family court to resolve family law issues; and, increase access to legal information and legal assistance in family law matters. The Report notes:

   Our Rules of Court and the forms contained in those rules are very
   technical and completely impede a self-represented litigant from
   gaining Access to Justice. …