Earlier this month, Claire Farmer wrote a helpful article for this column called 4 Tips for Self-Represented Parties in Small Claims Court. As a result, I thought that it might be useful to address the issue of the self-represented litigant in family court today.
Based upon my recollection alone, I would have said that 20 years ago the vast majority, if not all of family court litigants had counsel on both sides of a file. This is far from true today. Recent statistics for the Welland Court Mandatory Information Program disclose that over the past year, only 7 per cent of files have a lawyer representing both litigants compared to 53 per cent where neither party to the file has a lawyer representing them.
I don’t entirely believe in the old legal adage, likely as not written by a lawyer, “he who is his own lawyer has a fool for a client,” but I do say to the self-represented litigant in family court, be wary.
Without question, there are many straightforward files where the parents largely agree with respect to the best interests of their shared children. They do not require a lawyer to tell them what time a child should be picked up for a visit or what time they should be put to bed. Likewise, most courts in Ontario now have on-site mediation services available which can help parties to iron out the details of custody and access arrangements where appropriate to do so. While this service isn’t free of charge, the cost is based upon a sliding income scale and simply wasn’t available 20 years ago.
Furthermore, since 1996, child support across Canada is determined by the application of mandatory guidelines applied to the payer’s income based upon the number of relevant children in the recipient’s household. If a payer is an employee with total income of $50,000 and there are two children in the recipient household, then table support is $743.00. A lawyer isn’t required in order for you to obtain this information, and any number of online websites will tell you same.
Having said that, there are many files which are not straightforward and where parties would be well advised to seek legal representation. There are files where there are contradictory allegations as to the strength and failings of parenting abilities, disputes over parenting schedules and over important decision-making. In child protection files, a local Children’s Aid Society may be looking to make a child a ward of Children’s Aid or a ward of the Crown for adoption purposes. There are, as well, files where a payer’s income is not a straightforward T4 income – for example, where the payer is self-employed. Likewise, there are many occasions where there are significant property issues which need to be determined and adjudicated upon.
There are more than 40 rules of the family court which dictate the forms to be used and the process by which the case is dealt with. There are evidentiary rules which dictate what documentary or electronic evidence can and cannot be submitted into the court record, and if admissible, dictate the process one must follow in order to have them admitted. With all due respect to an intelligent, self-represented litigant, this can be daunting, and at times the process has bedevilled experienced legal counsel. It is generally not an excuse for a litigant to say they don’t understand the rules because they aren’t a lawyer. Frequently, the consequences of not following proper procedure can be significant and can lead to the loss of a case or significant cost repercussions. More than one self-represented litigant has buckled under pressure part way through a proceeding because the process simply became too much.
As well, good legal counsel brings not only knowledge of the law and procedure to a file but something else that a self-represented litigant lacks: objectivity with respect to the facts of their case. To borrow a line from an old Neil Sedaka song, “breaking up is hard to do.” Parties to a separation suffer from hurt feelings, anger, depression and a loss of security and sometimes self-worth. Frequently, they fail to realize the extent to which their emotions are clouding their judgment. To then expect such a person to navigate a complicated legal process involving their children or future financial security is simply unrealistic. In those cases, the litigant would be well advised to heed the above referenced legal adage and obtain trustworthy and experienced counsel to help them resolve issues of utmost importance to them.
James Stengel is a Family Law Lawyer with Houghton, Sloniowski & Stengel. Reasonable Doubt appears on www.nowtoronto.com on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Houghton, Sloniowski & Stengel.
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