Views of Ontario Lawyers on Family Litigants without Representation
Birnbaum, Rachel, Bala, Nicholas, University of New Brunswick Law Journal
Abstract: The increasing number of family litigants without legal representation poses significant challenges for lawyers, litigants and the justice system. This paper reports on a survey of 335 Ontario family lawyers about their experiences with litigants without legal representation and related access to justice issues. These lawyers report an increase in the number of family litigants without lawyers. They attribute this increase principally to lack of eligibility for legal aid and an inability to afford counsel, but also recognize such factors as a perception that lawyers increase the expense and complexity of resolving cases, and litigants' belief that they can adequately represent themselves. Participants also recognized that some litigants have a desire to personally confront a former partner. Overall, lawyers report that cases involving litigants without representation take longer and are more costly for their clients to resolve; they also report worse outcomes for many of those without lawyers.
In an effort to look forward, the survey also reports on the lawyers' opinions about both public and private responses to the lack of legal representation in the family justice process. While such developments as mandatory information sessions and the increased use of limited scope retainers have had positive effects, the authors argue that concerns created by lack of representation, especially for vulnerable litigants and their children, must be better addressed.
The Challenges of Lack of Representation for Family Litigants
While the increasing trend in many jurisdictions of family litigants without lawyers (1) has received only limited attention in scholarly literature, the number of litigants without lawyers is having a profound effect on family court judges, family lawyers, litigants both with and without lawyers, and on the very nature of family justice. As the American scholar Zorza concludes: "there is absolutely no reason to believe that the phenomenon of self-representation is going to go away. On the contrary, there is every reason to believe that it will increase". (2)
In Ontario, Chief Justice Warren Winkler recently commented on the state of the family justice system:
There are two noteworthy trends occurring in the family justice system. Those that can afford it are increasingly choosing methods of private mediation or arbitration where they seek a faster and more efficient process over which they have greater control. Meanwhile, the public court system is increasingly dominated by self-represented litigants. These litigants either commence their litigation in this manner or are forced to represent themselves after exhausting their funds mid-way through the process. More than half of family law litigants are self-represented. In some Toronto area courts, over 70 percent are reported to be self-represented. (3)
These remarks reflect the stark reality of the development of a two-tiered family justice system, where those seeking relief from family courts are most often those without legal representation. (4)
Because the only Ontario government data collected on legal representation in the Family Courts is based on reports at the time of filing an application in court, it is not possible to obtain a totally accurate picture of the extent to which family litigants in the province do not have lawyers. Nevertheless, this data source makes clear that a substantial portion of family litigants do not have lawyers. Based on this data source, between 1998 and 2003, an average of 46% of litigants in the Ontario Family Courts were not represented by a lawyer, (5) rising to 62% in 2006-2007, before falling somewhat to 54% in 2009-2010, the last year for which there is data available. (6) A 2010 Ontario survey of households identified family law matters as one of the most significant areas where individuals had legal problems without adequate access to legal advice. …