Litigants without lawyers abound in Ontario’s family courts today. Their presence has grown from the exceptional to a normal and significant portion of those cases which our courts decide. Many of those separating spouses who do not have lawyers are without the financial means to retain counsel. Legal Aid coverage has income eligibility caps set at a level that exclude the middle class and much of the working poor. That is not the whole story, however. It is increasingly common for individuals who do have the financial ability to hire a lawyer to act on their own because they do not see the benefit of having a lawyer and, in the internet age it seems feasible to figure out the rules and legal principles without going to the significant expense of retaining counsel. No one is required to hire a lawyer and in theory the court system is accessible to “self-represented litigants” as we call them. That very name indicates the nub of the problem. Rather than having a system that is truly accessible we have one that is designed for represented parties. The reality is that it can be perilous to a litigant to “self-represent.”
Our legal system and processes are designed to run efficiently in the common law tradition. The goal is for cases to be presented to the court by two opposing parties who because they are opposite in interest will, presumably, gather all the necessary information and test it before the judge. To ensure that the process is fair numerous elaborate rules of evidence and process have been developed. These are complicated enough that many trained lawyers trip up in their application. Untrained litigants tend to crash through them without even realizing it. Aside from the procedural hurdles that an unrepresented party must overcome, there is the more fundamental problem of learning and understanding the relevant legal principles. In Ontario we have chosen a very sophisticated and, on the whole, fair legal regime for deciding how to care for children and divide up assets and income after a relationship breakdown. It takes years of legal education and practical training for family lawyers to understand the system. Few unrepresented parties ever figure out exactly how it works which presents a huge stumbling block to putting together a case.
In Ontario great efforts to foster accessibility to the system are underway. The Ministry of the Attorney General has a well designed website. There are information centres at the family law courts and increasingly free or subsidized mediation services. All this helps, but it is not enough. The courts are still overwhelmed by the self-represented. Where both parties are self-represented they turn to the judge to seek advice and assistance which is completely antithetical to our system. Our judges are not permitted to provide legal advice to litigants. Where only one party has a lawyer the temptation is to put the greater procedural requirements on that party which inequitably adds to the represented party’s expense. The party with the lawyer may be the one expected to prepare and organize briefs, as well as to prepare support calculations and equalization calculations. Inevitably when there is an unrepresented party there are more court appearances and longer appearances. This adds to the cost for the represented party and adds to the costs and delays of all litigants in the system. Even those cases where both parties are represented are affected as they suffer from the delays and demands on the system caused by those without lawyers. I do not believe that more information sessions, better web sites or additional mediation services can solve this problem.
I have a modest proposal that could solve the problem for private family law disputes. It is to abandon our common law traditions and adopt instead a court process with investigative active judges at the centre. In this model a judge, who does have the expertise in substantive and procedural family law, will do what the parties actually want and need, which is investigate their circumstances and apply the law to adjudicate their cases. I envisage this as a court system in which there are no represented parties. No one would have a lawyer. The litigants would deal directly with the judge appointed to their case. The judge would be supported by a staff of family lawyers, paralegals, social workers and accountants who would assist in the task of investigating the relevant facts and circumstances. This process could be funded by user fees to be set at a level that would be cheaper than paying a private lawyer in an adversarial system. The user fees could be waived for those under a fixed annual income, say $40,000/year.
Private family lawyers would continue to advise clients and assist in negotiating settlements outside of court. For those who wished, they could participate in private mediations and arbitrations. The free and subsidized mediation services in courts would also continue to be of value.
Of course, the political will to achieve such a dramatic reform is almost unimaginable but perhaps, just perhaps, the current state of the family law system will open the door to change.