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Georgina Carson, Partner

SELF-REPRESENTED LITIGANTS IN THE FAMILY COURTS: IS SELF-REPRESENTATION AN UNFAIR TACTIC?

Enforcing Cross-Jurisdictional Support Orders under the Interjurisdictional Support Orders Act, 2002

SPOUSAL ENTITLEMENT TO EMPLOYEE RELATED BENEFITS & RRSPs

SELF-REPRESENTED LITIGANTS IN THE FAMILY COURTS:
IS SELF-REPRESENTATION AN UNFAIR TACTIC?

By Georgina Carson and Michael Stangarone
MacDonald & Partners LLP

The growing number of self-represented litigants (“SRLs”)¹ in the court system pose significant challenges to both counsel and the administration of justice.  As court proceedings become more protracted and expensive, the likelihood of self-representation increases.² The increase in self-representation can cause problems at a procedural and substantive level.  The family law lawyer must be vigilant in balancing the duty to vigorously advance his or her client’s interests with his or her duties under the Rules of Professional Conduct and as an officer of the Court.  

Both counsel and the Court owe a duty to the self-represented party. The Court must ensure that the SRL is afforded an opportunity for a fair hearing. However, the Court must not prejudice the rights of the other party in the process. Self-representation can undermine the integrity of the justice system. The Court relies on counsel to ensure that the integrity of the courtroom is maintained when dealing with a self-represented party.  Judges may relax the rules of evidence and procedural requirements for the SRL to ensure that justice is done.

SRLs often engage in ‘legal bullying’, which has been defined as abusive behaviours or tactics intended to prevent the opposing party from advancing his or her claims. Legal bullies include litigants who seek the same relief in different jurisdictions across Canada; bring the same motion on more than one occasion; fail to obey court orders; fail to comply with his or her disclosure obligations and procedural requirements under the Family Law Rules (“the Rules”)³ ; complain to governing bodies about professionals involved in the litigation; and cause excessive delay and a waste of court time⁴ .  The Rules provide a means by which counsel and the Court may sanction the SRL for his or her unreasonable conduct in an effort to avoid costly litigation. 

1.  DEALING WITH THE SELF-REPRESENTED LITIGANT

A.  Is there a Right to Self-Representation?

An individual who has not been declared unfit to stand trial has a right to self representation.⁵   The SRL cannot be forced to be represented by counsel notwithstanding he or she may be disadvantaged by acting without legal assistance and may engage in unreasonable conduct.  The SRL assumes the risks and disadvantages of appearing without counsel.⁶

In her paper, “Self-Represented Litigants in Family and Civil Law Disputes”⁷ , the Honourable Madam Justice Blishen writes that SRLs are often unwilling to negotiate, bring vexatious and repetitive motions and use a disproportionate amount of judicial resources.  The courts and counsel representing the opposing party are often faced with "career" litigants who have enough spare time and energy to conduct costly, protracted and repetitive litigation.⁸   There is no incentive for the self-represented party to use time efficiently or attempt settlement where the opposing party is the only party paying for legal services. 

 B.  Protecting Yourself and Your Client

(i)  SRL’s attempts to take advantage of the uneven playing field

The strategy of some SRLs is to take advantage of the uneven playing field by driving up costs to prevent the opposing party from advancing his or her claims in the court action.  The SRL will take a ‘nothing to lose’ approach to the litigation unless opposing counsel and the Court take steps to sanction that party for his or her unreasonable and costly behaviour. It is imperative for counsel to seek costs and other sanctions at every step of the litigation to restrain the SRL’s unreasonable conduct, as further explained below. Counsel should prepare his or her client for the fact that a self-represented party may lengthen the court proceeding and increase costs. 

The SRL may seek to assert indirect control over his or her spouse by dominating his or her counsel’s time and increasing legal fees. The SRL may inundate counsel’s office and email inbox with repetitive, self serving and sometimes incendiary correspondences, demanding immediate responses.  In her paper, Unrepresented Litigants – Professional and Ethical Considerations⁹ , Susan Heakes, Discipline Counsel with the Law Society of Upper Canada, explains that emailed communications is ideal for this form of harassment.

The SRL may transfer his or her feelings towards his or her spouse onto the spouse’s counsel and attempt to make the matrimonial matter a personal one with opposing counsel. The SRL may personally attack counsel in correspondence and court documents. Counsel may find him/herself defending his or her professional integrity in court or to the Law Society in response to personal attacks rather than focusing on resolving the issues in the court action.¹⁰   Counsel must ensure that he or she is not distracted from the primary goal of advancing the client’s case by the behaviour of the self-represented litigant.

Rule 6.03(4) of the Rules of Professional Conduct states that a lawyer shall not send correspondence or otherwise communicate to a client, another lawyer or to any other person in a manner that is abusive, offensive or in an otherwise unprofessional tone. A paying client may be critical that counsel is not being ‘aggressive’ enough with an abusive self-represented party. Counsel should explain his or her professional limitations and that maintaining appropriate conduct is in the client’s long term best interests.

(ii)  Counsel’s Obligations to the Client and the SRL – A Fine Balance

Counsel has a duty to vigorously advocate on his or her client’s behalf and to treat self-represented parties with professional courtesy and respect. A self-represented party should be afforded the same respect a member of the Bar would expect to receive.  In its statement of principles on SRLs and accused persons, the Canadian Judicial Counsel has advised counsel as follows:

Members of the Bar are expected to be respectful of self-represented persons and to adjust their behaviour accordingly when dealing with self-represented persons, in accordance with their professional ethical obligations. ¹¹

At the same time, counsel should be cognizant of the importance of ensuring that he or she is protected from potential claims of misconduct by the SRL, however ill-advised those claims may be.  The Rules of Professional Conduct require that counsel ensure that the relationship with the SRL is clear. The SRL should be made aware from the outset that his or her interests are not being protected or advanced by opposing counsel, and that the opposing party is in fact acting contrary to those interests.

Rule 2.04(14) of the Rules of Professional Conduct states that counsel should urge the unrepresented party to obtain independent legal representation; ensure that the SRL knows his or her interests will not be protected by them; and that counsel is acting exclusively in the interests of his or her own client. In the first correspondence sent to the SRL, counsel should request that he or she retain a family law lawyer to act on his or her behalf and advise the SRL of the contents of Rule 2.04(14).   The self-represented party should be repeatedly advised that counsel cannot provide him or her with legal advice or protect his or her interests. All communications with the self-represented party should be made in writing.  There is no obligation on the part of counsel to interact with the self-represented party by telephone. A third party should be present during oral communications, if possible, or the communication should be recorded and confirmed in writing.  According to Susan Heakes, Discipline Counsel, the Law Society often receives complaints that counsel has not conducted himself or herself in appropriately in private conversations with the self-represented party.  Properly papering your file will assist in responding to a potential complaint.

Rule 6.01 of the Rules of Professional Conduct require that counsel shall be courteous, civil, and act in good faith with all persons with whom counsel has dealings in the course of his or her practice, which includes SRLs. Rule 6.01(2) of the Rules requires that counsel consent to reasonable requests concerning trial dates and adjournments, provided that the requests do not prejudice the rights of the client.¹²  Rule 6.01(3) requires counsel to avoid sharp practice.¹³  

Counsel should advise a self-represented party if she or he has made a procedural error, and advise his or her client that s/he cannot rely on that error.¹⁴ Taking advantage of a SRL’s error is reportable.  Ms. Heakes notes that a client’s instructions to resist a reasonable adjournment request or to take advantage of an error do not ‘trump’ the lawyer’s professional obligations.  If a client’s instructions prevent counsel from his fulfilling his or her professional and ethical obligations, then counsel should remove him/herself from the record. On the other hand, counsel must ensure that his or client’s interests are not being prejudiced by accommodating the self-represented party’s request to delay the resolution of the matter.  

An SRL who has transferred his or her negative feelings for his or her spouse on to the lawyer may pose a physical threat to both counsel and the client. Rule 4.06(3) of the Rules provides that a lawyer who has reasonable grounds to believe that a dangerous situation is likely to develop at a court facility must inform the local police force and give particulars.¹⁵ In those circumstances, counsel should request court security for every court appearance and seek a restraining order against the SRL. Where a SRL is abusive to opposing counsel or the client during a court attendance, the judge may direct court security to be present.  

2.  JUDICIAL INTERVENTION

A.  Duty of the Court

As mentioned above, the Court has a duty to the self-represented party. Counsel should prepare his or her client in advance of a court appearance that the judge may appear to be favouring the self-represented party in discharging that duty. Judges must ensure that the basic rules of evidence and the principles of natural justice are respected in the courtroom to ensure that the SRL is given a fair hearing while at the same time ensuring that the opposing party’s rights are not unfairly prejudiced in the process.¹⁶ Judges are faced with the question of how much, if any, leniency should be provided to the SRL in light of his or her lack of legal knowledge and expertise.

In her paper, A Judicial View on Self-Represented Litigants¹⁷ , the Honourable Madam Justice Trussler writes that it is sometimes necessary to exceed the licence normally extended to counsel when dealing with self-represented parties.  As well, Justice Blishen writes that it is important for the court to assist SRLs in understanding the legal process and relevant legal issues so that the case may be presented to the best of the litigant's ability.¹⁸  She writes that the ongoing tension between assisting the SRL to ensure a fair trial and being too lenient, which could result in an unfair trial for the opposing party, is at the heart of the debate regarding SRLs. Counsel must ensure that objections to the leniency afforded the SRL are made on the record to strengthen their client’s appeal based on either an appearance of bias or on an unwarranted relaxation of rules or standards.

Any leniency afforded the SRL must not deprive the opposing party of procedural fairness.  In Davids v. Davids¹⁹ , the Court of Appeal noted the following:

... Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. ...

The question of whether a party has not been treated equally and fairly, or not given an opportunity to present a case or to respond to another party's case, is a fact specific determination.  In Tarapaski v. Tarapaski²⁰ , the appellant, who was self-represented at trial, argued that the trial judge had committed reviewable errors in refusing his adjournment request.  His appeal was dismissed. The appellant was unable to point to evidence that would have affected the outcome of the application had he been granted an adjournment.

B.  Judicial Latitude

A number of cases have considered what constitutes an appropriate level of judicial involvement in dealing with self-represented parties. The Court has held that "where the litigant is self represented, the Court can intervene for the purpose of focusing the proceedings on the issue before the Court"²¹ . That means, for example, that a trial judge may need to question the SRL or any of his or her witnesses to obtain relevant information. 

The conduct of SRLs may impede the administration of justice. It is not unusual to find a lengthy court list including several cases involving self-represented parties as SRLs may be less likely to settle their cases outside of court.  Cases involving self-represented parties take more time than cases with counsel as judges are left to explain the rules of evidence and provide guidance concerning the procedural requirements under the Rules. The other matters on the court docket may not get heard as a result.

(i)  Assisting the SRL:  Relaxing the Rules

If judges do not relax procedural rules and the rules of evidence, the result could be delay and ultimately a halt to the litigation process.  In Job v. Wall²² , Justice Goodman stated that it may be necessary to give unsophisticated self-represented litigants some leeway with the rules of evidence.  In O’Brien v. Griffin²³ , the Ontario Court of Appeal reversed the trial judge's finding of an adverse inference after refusing to grant an adjournment to the SRL to properly introduce evidence of his income. The Court of Appeal determined that the trial judge had a duty to assist the self-represented litigant by granting an adjournment for a reasonable period of time.²⁴

In Angel v. Angel²⁵ Justice Ferrier commented on the question of how much assistance the court should provide to self-represented litigants as follows:

A trial judge should bear in mind when a trial is conducted by an unrepresented litigant [it should] to every reasonable degree grant the litigant understanding and assistance. This is, of course, subject to the overriding proviso that the trial judge must be absolutely impartial, must not play the role of advocate, and must apply the rules of evidence and procedure equally to all litigants. The fact that a litigant is unrepresented does not entitle a trial judge to fail to apply the rules of procedure or ignore the law.

In Ridout v. Ridout²⁶ , the trial judge "had to refocus Ms. Ridout on numerous occasions to remind her” of the issues during cross-examination. The Court of Appeal held that the judge below was "alive to the fact that the Wife was self represented and took pains to ensure that she was not prejudiced." The Court of Appeal held that his interventions in an effort to direct her to the relevant issues were entirely appropriate.

Accordingly, the Court will allow the self-represented party leeway in their presentation of evidence and cross-examination of the opposite side, in order for the party "to give his story in full to the Court."²⁷   In Smushkevich v. Gartner²⁸ , the self-represented litigant was unsuccessful in seeking to resist the father's application for the return of the child to reside with him in California. At paragraph four, Justice Brownstone stated:

I extended every reasonable latitude to her [self-represented party] to ensure that she could present her evidence as completely as possible, notwithstanding the questionable admissibility and relevance of much of her evidence ... Ms. Y.G. received a full and fair hearing ... she was in no way prejudiced by the fact that she was not represented by a lawyer - in fact, she may have received an unfair advantage by being unrepresented, given the laxity with which evidentiary rulings were made.

(ii)  Too Much Leniency – Creating a Reasonable Apprehension of Bias

If the Judge is too lenient on the self-represented party, the opposing party may allege bias and a denial of natural justice. In Murphy v. Gordon, Justice MacDonnell warned that latitude cannot be extended past a certain point:

The social service aspect of the Family Court may lead in many instances to a relaxing of the Rules of evidence, and a somewhat less formal procedure during Hearings or Trials than what is required in other Courts. Despite this, it is essential that in a Hearing or Trial all evidence should be taken under oath and transcribed. Any evidence not taken under oath should be disregarded by the Trial Judge.

In Hockey-Sweeney v. Sweeney²⁹ , Justice Laskin held that a presiding judge should not give legal advice or manage the person's case, except to ensure fundamental justice and an opportunity to be heard. In White v. White³⁰ , the father alleged bias because the lower court judge stated that he was inclined to agree with the mother’s position (an SRL) but could not give her legal advice.  The father's lawyer informed the judge of his client’s concerns but did not request that the judge recuse himself from the case. The Court of Appeal held that the judge had done nothing wrong. That the judge indicated his preference for the mother's position did not amount to bias. In Kidder v. Lackten³¹ , the Court of Appeal dismissed the father’s appeal from an Order dismissing his motion on the ground of bias. That the judge may have "bent" the Rules to accommodate the self-represented party was not a ground for appeal.

A trial judge’s decision may be overturned where he or she overstepped and intervened too much in the trial involving the SRL. In Ross v. Hern³² , the Ontario Court of Appeal described the trial judge's conduct as follows:

In 125 pages of transcript, there were a total of 295 questions or interruptions by the trial judge during the evidence of Mr. Hern…Even if one only considers the sheer number of questions and interruptions that went on during the giving of the evidence in this trial, the trial judge acted inappropriately. The trial judge interrupted so much that the parties were not able to present the case as they saw fit. The trial judge was an active participant in the case. He was not an impartial arbiter.

The Court of Appeal found that the trial judge had crossed the line. The questions were not only numerous but were of such a character as to amount to an unwarranted interference with counsel's conduct of the trial. The trial judge effectively took the case into his own hands and out of the hands of counsel. The Court held that in appeals based on undue interventions in the examinations of witnesses, the test is not so much prejudice but whether the image of impartiality was destroyed. 

In Khimji v. Dhanani³³ , the Ontario Court of Appeal was asked to determine whether the trial judge unreasonably exercised his discretion by refusing to grant the appellant an adjournment of his trial to permit the counsel he had retained to conduct the trial for him. In Khimji, the appellant met with a lawyer 15 days after obtaining a one month adjournment of the trial. The lawyer advised that he would act for him if the trial was adjourned to the next trial sittings. The appellant could not conduct the trial on his own as he was legally blind and not fluent in English. The Court of Appeal upheld the trial judge’s refusal of the adjournment.  In determining whether to grant an adjournment, the Court of Appeal stated that the trial judge must consider not only the orderly processing of trials, but the need to effectively enforce court orders.  The Court of Appeal held that it was not unreasonable to refuse the adjournment in light of the appellant’s failure to make any effort to retain counsel who could act on the trial date and his failure to pay costs. 

3.  SEEKING SANCTIONS AGAINST SRLs AT TRIAL OR ON MOTION

A.  Approaches to Limiting Unreasonable Conduct

While counsel attempt to negotiate settlement to avoid the high financial and emotional costs of a trial, a case with an opposing SRL is more likely to result in a trial.  The SRL often brings more motions, believing that he or she will have success with the judge. The self-represented party sees the trial or motion as his or her opportunity to present ‘the truth’ as he or she sees it. An SRL is likely to bring motions without ascertaining counsel’s availability necessitating costly adjournments and causing further delay to the resolution of the case as a whole.

The Family Law Rules provide a means by which counsel and the Court can address the SRL’s unreasonable conduct in a timely way in order to prevent that party from perpetuating the litigation unnecessarily.  Counsel should employ the Rules to bring motions seeking a finding of contempt, to declare a party a vexatious litigant or to prevent that party from bringing further motions without leave of the court, to compel disclosure, to strike pleadings and to seek costs.

Case conference judges are permitted to make both procedural and substantive orders under the Rules³⁴. Judges should be encouraged to case manage cases involving self-represented parties to ensure that matters move forward.  A case management judge will have a better understanding of the issues and personalities involved in the litigation, than would a revolving door of judges.   However, in many Ontario courts, maintaining the continuity of one case management judge on a case is a goal of the Family Law Rules that has proven impractical in many instances, to effect.

B.  Obtaining Costs Against the SRL

 Costs can be awarded against a self-represented party where his or her conduct has been unreasonable and has delayed the resolution of the case.  In Fong v. Chan³⁵ , the Ontario Court of Appeal held that modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. The Court stated that all three purposes are fostered by allowing the trial judge discretion to award costs to self-represented litigants. Likewise, the Court has discretion to award costs against self-represented litigants.

In Angel, Justice Ferrier ordered costs against the self-represented wife where she turned a five-day trial into a 21-day trial, including 11 days of cross-examination of her husband (until finally stopped by the court). His Honour quoted Justice Vogelsang in Voakes v. Trumley as follows:

Courtroom availability and trial time are scarce resources and experienced counsel are expensive. Unrepresented litigants must not be immune from the financial consequences of unsuccessful lawsuits, or be free to institute proceedings of dubious merit without being accountable at the end of the day.

Costs should be sought by counsel against the SRL at every step in the litigation to ensure that he or she is aware that there are consequences for unreasonable conduct and that costs may be awarded where a party is unsuccessful at trial or on a motion.  In Husein v. Chatoor³⁶ , Justice Spence made clear that the Family Law Rules will be applied vigorously to award costs in the appropriate circumstances. In that case, the successful party (an SRL) not only did not receive costs, but the unsuccessful party was awarded substantial costs.  Justice Spence found that the husband engaged in unreasonable behaviour and, as a result, notwithstanding his success on the motion, he was deprived of his costs. His behaviour was so unreasonable that the wife was entitled to her costs in the amount of $20,000. The husband was a lawyer who insisted on representing himself. Justice Spence found that he had used the system to conduct the litigation in an unreasonable fashion. The father showed poor judgment fulfilling his legal and ethical obligations.  His affidavit allegations, in particular the highly inflammatory remarks concerning his wife’s alleged mental instability, were entirely ill-conceived and had no place in the motion to stay proceedings.

In Potyrala v. Potyrala,³⁷ Justice Brown ordered no costs of motions brought by the parties. However, his Honour determined that it was appropriate to award the Wife costs in respect of the costs submission process. Before making costs submissions, Wife’s counsel wrote to the self-represented Husband proposing that neither party pay any costs on account of the motions. The Husband did not accept the proposal. Instead, he filed a costs brief asking for an award of $63,916.00 for the interim motion although he had no counsel. Justice Brown found that his submissions were “extravagant in the extreme and possessed no air of reality whatsoever.” The Husband then filed reply cost submissions, necessitating the Wife’s counsel to write to his Honour asking that he not consider them since his endorsement did not permit reply submissions. In light of the self-represented party’s refusal to accept the Wife’s reasonable offer to settle on the issue of costs, Justice Brown ordered costs against him of $3,000. 

In Vaughan v. Vaughan³⁸ , the Court ordered costs against the SRL as he had failed to comply with his disclosure obligations in any meaningful way in order to move the matter forward.  In the course of this litigation, he had refused to follow directions of the court. The Court noted that part of the problem was his lack of understanding of the litigation process, his absence from the country, and his aggressive and uncooperative litigation style. At every turn, the Husband denigrated the Wife, who was forced to return to court on numerous occasions to obtain an order for child support. The Court stated the following:  “…By refusing to utilize legal counsel in his quarrel with Ms. Vaughan, he [SRL] fertilizes an environment that is poisoned with the obvious ill-will that exists between the parties…He wants to resolve matters on his terms. He cannot see that the justice system is geared towards balancing competing positions. He cannot see why the Court does not automatically accept his position as being the correct one.”

In S. (C.) v. L. (T.)³⁹ , the Court ordered costs against the self-represented Wife as her conduct in the litigation caused additional and unnecessary expense. Examples of her conduct included faxing voluminous documents to the husband's counsel with the sole intention of driving up the husband's legal fees; failing to provide disclosure and answers to undertakings; re-arguing the same motion and scheduling it on a date she knew the husband’s counsel was out of town. The Court found that the self-represented party had occasionally used her self-representation as a means of trying to take advantage of the system.

C.  Ensuring that the SRL Complies with his or her Disclosure Obligations

The Rules mandate the parties to provide early and ongoing financial disclosure. Subrules 13(16)(17) provide counsel with effective tools to compel disclosure if a party is unwilling to provide relevant information. Pursuant to Rule 13(16), where a party has not filed and served a Financial Statement or Net Family Property Statement or given information required under Rule 13, a court may, on motion without notice, order the party to serve and file a Statement. The Rule provides that the court shall order the party to pay costs if an order is made under Rule 13(16). Pursuant to Rule 13(17), if a party does not obey an Order to serve and file a Financial Statement or Net Family Property Statement under Rule 13, the Court may, among other things, strike out the party’s pleadings.⁴⁰

In Dinkha v. Medina⁴¹ , a disclosure order and child support order were made against the self-represented party, who failed to appear in court as he was unable to take time off work. In refusing to set aside the Order, Justice Vogelsang stated the following:

If Mr. Medina had retained counsel, it is clear that he could have been represented without his own attendance on the motion. He chose to represent himself and, by doing so, undertook not only to conform to the usual procedures of the Court, but also to commit the necessary time to the litigation to protect his own interests. 

D.  Striking Pleadings and Prohibiting Motions without Leave

Counsel should rely on Rules 1(8) and 14(23) in seeking to compel disclosure or to obtain relief as a result of a party’s non-compliance with the rules or court order. Rule 14(23) may be employed to prohibit an offending party from taking further steps in a proceeding until he or she remedies his or her breaches under the Rules or court orders.  

i)  Striking Pleadings

Counsel should bring on a motion to strike a self-represented party’s pleadings whether before, at the commencement of trial or even during the trial where the SRL is in breach of a court order. In Hughes v. Hughes⁴² , Justice Quinn struck out the self-represented husband's Answer in the middle of the trial, and directed that the trial continue as an uncontested hearing. The husband had, at a case conference, agreed to a court order providing that he would retain the wife as beneficiary of his life insurance policy.  The husband breached that order by failing to pay the premiums. Instead of the usual striking authority under Rule 14(23) of the Family Law Rules, Justice Quinn relied on Rule 1(8) to strike the husband’s pleadings for his failure to obey the court order in light of the fact that the order was made at a case conference, and not at a motion as required under Rule 14(23).  His Honour stated the following: 

The husband cannot expect to come before this Court and be given a voice in circumstances where he has thumbed his nose at the legal system by deliberately breaching an order…

In Children’s Aid Society of Kingston (City) & Frontenac (County) v. N.(C.)⁴³ , the Court struck out the mother’s Answer pursuant to Rule 14(23). The mother’s actions, including her self-representation, frustrated meaningful case management, a negotiated resolution, or a trial on the substance of the issues. After almost two years, and twenty-five court appearances, the Court found that the mother was not inclined to settle or try the issues. The mother stopped participating in the litigation. Despite twenty-five court appearances, no settlement conference had actually occurred on the merits despite special arrangements to help her. She failed to file material or attend. The Society arranged transportation for her. She did not accept it.

In Gould v. Sandau⁴⁴ , counsel for the Wife contended that significant portions of the self-represented party’s factum were improper in the sense of being scandalous, vexatious and without merit, and unintelligible or irrelevant. Apart from the personal attacks contained in the factum, counsel was “not able to discern what exactly the appellant's point is" and could not file a factum in response.  The factum included statements such as, “Barbara Jean Gould and her Lawyer Thomas Harding have lied, fabricated evidence and used half truths in trying to prove her statement…”  The British Columbia Court of Appeal found in favour of the Wife, stating that self-representation does not excuse basic compliance with rules of the Court. The Court directed the self-represented party to file a revised factum in compliance with the Rules setting out the facts, issues and argument concisely, deleting improper allegations about the Wife and counsel and omitting new evidence. The Court ordered costs against the self-represented party as his failure to follow the rules and serve an adequate factum increased the Wife’s costs.  

ii)  Prohibiting Motions without Leave

Rule 14(21) of the Family Law Rules permits the Court to prohibit a party from bringing motions without the court’s permission. The Rule is meant to prevent the SRL from engaging in abusive or vexatious proceedings.

In Roscoe v. Roscoe⁴⁵ , the self-represented party brought unmeritorious motions and appeals.  The Court ordered him to obtain leave of the court and pay any outstanding costs before commencing any further proceedings.  He was ordered to provide an affidavit setting out the complete record and to post security for costs on any motion for leave. In rendering its decision, the Court stated the following:  “Enough is enough. This Court has limited resources and must, therefore, attempt to deal with the work before it in a fashion that is fair to all users of the court. While a person’s access to justice is a fundamental right, the court must be diligent to ensure that its processes are not abused by any particular litigant to the detriment, not only to those directly involved in the litigation, but, as well, to the system at large.”

In Bauer v. Bauer⁴⁶ , the Husband filed six original motions, withdrew five, and brought two motions for contempt relying on unsworn affidavit material. Both motions were dismissed.  Although two motions was not considered ‘numerous’ by the Court and the Court did not find that the Husband was attempting to delay the case, the Court invoked Rule 14(21) to prohibit him from bringing any other motions without first obtaining an order permitting him to do so.  The Husband had yet to pay any outstanding costs and added to the Wife’s costs in forcing her to attend at court for his vexatious motions.

In Church v. Church⁴⁷ , the Ontario Superior Court required a self-represented party who had brought motions to re-argue issues which had been decided against her, to submit (without serving) a draft notice of motion and sworn affidavit in support of her proposed motion to the case management judge, attached to a motion form seeking advanced permission to bring a motion, pursuant to Rule 14(21) of the Family Law Rules.

In Spears v. Haugen⁴⁸ , the self-represented party appealed from the order of Justice Timms dismissing her Form 14B motion, instructing the court staff not to accept any further 14B motions "unless there is an actual proceeding properly before the court", and ordering that the appellant "is not permitted to bring any proceeding without the permission of a judge of this court". The Ontario Court of Appeal noted that the Wife was self-represented and that her materials were ‘incomprehensible”.  She alleged that she had been a victim of fraud by a number of agencies and from her former spouse stemming from her divorce in February 1999. The Court of Appeal found no basis to interfere with Justice Timms’ Order.

D.  Declaring the SRL a Vexatious Litigant

The Court is empowered to prohibit the commencement of future proceedings, or the continuation of current proceedings, except with leave of a judge.⁴⁹ Declaring a party a vexatious litigant is a drastic remedy which the court imposes sparingly and only in the most egregious of cases.

In Ballentine v. Ballentine⁵⁰ , the parties had been in and out of court for over 15 years, involving over 8 judges. The self-represented Husband was deemed to be a vexatious litigant for his failure to pay spousal support for six years, failure to make any payments ordered for costs to his former Wife, and for his non-disclosure. He appealed the Order, bringing the same application to the Court of Appeal, which was dismissed.  The Husband’s conduct had devastating financial effect on the Wife.  She spent over $150,000 in legal fees, and the Husband’s support arrears rose to over $187,000.

In Boyle v. Coady⁵¹ , the Wife, who was a lawyer, was declared a vexatious, scandalous, and frivolous litigant who abused the court process. The matter had dragged on for over 14 years as a result of the Wife’s allegations of non-disclosure. 14 judges and several lawyers had been involved. Most proceedings were initiated by the Wife, who failed to follow procedural rules, filed voluminous materials and launched numerous appeals.  Leave to appeal to the Supreme Court of Canada was refused as the issue of financial non-disclosure had already been adjudicated.  Her conduct in continuing to re-litigate the same issues was evidence that she was engaging in vexatious litigation which constituted an abuse of the court's process.

In Beattie v. Ladouceur⁵² , the parties engaged in litigation over a 20 year period. The self-represented Husband brought numerous unsuccessful motions. There were 15 contempt orders made against him. He fled the country instead of purging his contempt, and concealed assets.  He resisted the Wife’s attempts to enforce court orders. He owed her more than $200,000 in support arrears, and $352,000 in costs.  The Court found that his conduct was flagrant, egregious and vexatious. 

4.   LAW SOCIETY RECOMMENDATIONS

A.  Law Society Complaints

According to Ms. Heakes⁵³ , approximately 90% of the complaints received by the Law Society from non-lawyers come from family law cases. While most cases are not prosecuted, counsel must spend time and effort defending the complaints.⁵⁴   Ms. Heakes provides the following examples⁵⁵ of the complaints the Law Society regularly reviews:

1. The Lawyer has ‘misled the Court’ – the self-represented party may claim that opposing counsel has ‘lied to the court’ when reviewing an affidavit outlining a position on an outstanding matter that is different than the position advanced by the SRL;
2. The Lawyer is ‘misleading his or her client’ – the SRL may believe that counsel is encouraging his or her spouse to pursue the litigation to increase costs.   Sometimes, these complaints appear to emanate from roles assumed by the parties during their relationship. For example, the parties may have been engaged in an abusive relationship where the SRL dominated his or her spouse. Ms. Heakes advises that the Law Society explains to the SRL that it is up to his or her spouse to file a complaint against his or her own counsel in the circumstances;
3. The lawyer has engaged in sharp practice – the SRL may believe that counsel has taken advantage of his or her ignorance of the law. His or her belief may be influenced by the lack of perspective that the SRL has in the circumstances; and
4. The lawyer has lost his or her temper and has been unprofessional when dealing with the SRL.

B.  Best Practices in Dealing with the SRL

Various articles have been written about the growing phenomenon of self-representation. The articles contain helpful tips and suggestions on how best to respond to a SRL and to protect yourself.  Below is a summary of some suggestions:⁵⁶

(i)  Communications:  Put it in Writing
All communications with the SRL should be in writing. Counsel should be mindful that his or her correspondence may wind up in court or before a discipline committee. As a result, the correspondence should be drafted in plain language and in a fair tone.  The first correspondence to the SRL should clearly set out that you represent the opposing party and that you will not give advice to the SRL. Encourage the SRL to obtain independent legal advice or to attend at the Family Law Information Centre and meet with Duty Counsel. Oral communication should be avoided. Communication received from the SRL should be responded to promptly.

(ii)  Be Professional at all times
Counsel must be respectful and civil to the self-represented party. Counsel should keep a distance (refer to the SRL using his or her last name) from the SRL to ensure that he or she does not believe that his or her interests are being advanced.  Communications should be reviewed and edited to ensure that they cannot be viewed as disrespectful in any way. 

(iii)  Demand that the SRL complies with the Rules
The self-represented party may be prone to obfuscate, provide inaccurate disclosure, or mislead the Court, in breach of his or her obligations under the Rules. Counsel should demand that the Rules be rigorously followed to limit the SRL’s perceived power over the court process. As mentioned above, counsel should seek costs and pursue their enforcement at every stage at the litigation. Rule 13 should be strictly applied to ensure that timely and accurate disclosure is being provided by the self-represented party. 

(iv)  Be Careful When Negotiating – Document Everything
The Rules of Professional Conduct encourage negotiation and attempts to settle. There are risks associated with negotiating with the SRL as the SRL is not bound by the Rules of Professional Conduct.  As a result, ensure that all settlement discussions are confirmed in writing, and that those correspondences are brought with you to Court. Most SRLs do not understand or choose to ignore the rules of evidence, including settlement privilege and the confidentiality provisions concerning discussions made at court conferences under Rule 17 of the Family Law Rules.  SRLs are notorious for revealing privileged settlement discussions at motions and trial.  The SRL will inaccurately present the settlement discussions held at court conferences as evidence before the Court. Counsel should ensure that the correspondence detailing the discussions is available to correct any misleading information provided to the judge.

(v)  Disclosure
Counsel should provide his or her client’s disclosure at the first opportunity, and write to the SRL setting out precisely what disclosure is required. The SRL may be unaware of his or her disclosure obligations or how to compile the information into a coherent manner.

(vi)  Inside the Courtroom
Counsel should be respectful to the self-represented party inside the courtroom at all times. The judge will likely place more of the burden of the case on counsel to draft orders, organize court documents and disclosure, conduct research, etc.  Counsel should object to the SRL’s breaches of the rules of evidence and procedural requirements. If counsel believes that the judge is being too lenient on the SRL, he or she should object.

5.  CONCLUSION

Self-represented parties will continue to challenge counsel and the court system.  The right of the SRL to a fair hearing must be balanced with the right of the represented party to have the matter dealt with in a timely and cost-effective manner. Counsel should follow the suggestions outlined above to meet their professional obligations to their own client, the court and to self-represented parties.  Counsel should prepare his or her own client for the potential for increased cost that may be required to resolve the matter in light of the presence of the SRL.  At the same time, judges must ensure that the legitimacy of the rule of law is not undermined by the self-represented party.  If judges are too lenient with self-represented litigants, they run the risk of creating the appearance of bias and prejudicing the opposing party’s rights. The Court must not appear as an advocate for the self-represented party, otherwise the administration of justice will be brought into disrepute.

The Family Law Rules provide the Court and counsel with the ability to prevent the self-represented party from abusing the court process at significant cost to the paying client.  Judges are urged to employ the Rules to actively case manage matters involving self-represented parties at the outset to help ensure a timely resolution.   These Rules should be invoked more often and more effectively to prevent injustice.

Self-representation will continue to plague litigants, lawyers and the court system for years to come unless appropriate government and judicial resources are devoted to addressing the problem.   Perhaps a solution could be mandatory duty counsel or legal aid lawyers assigned in all family law matters where parties refuse to retain counsel.  A difficulty would be ensuring that parties do not abuse this resource and erode the role of private representation.  A means test could determine the fees that the SRL would be required to contribute to the cost of his or her assigned counsel (with appropriate safe-guards in place). This solution appears costly to the tax payer at first glance.  However, if duty counsel is able to assist in resolving a case that would otherwise take weeks of trial time exhausting valuable court resources and exponentially increasing costs for the opposing party and his or her counsel, the cost would be a fraction of the amount SRLs currently cost the system and his or her former spouse.  A party’s “right” to self-representation must be balanced with the current cost of that right to the community as a whole and represented litigants in particular.   In my view, a potential infringement of this right would be justifiable in a free and democratic society.    

Regardless of any long-term solution, the Court and counsel must be pro-active in employing the limited tools provided under the current Rules to stave off attempts by the self-represented litigant to use his or her own self-representation as an unfair tactic.

1 The literature distinguishes between ‘unrepresented litigants’ and ‘self-represented litigants’. The self represented litigant acts on his or her own behalf by choice.  The unrepresented litigant would like to have counsel but does not qualify for Legal Aid or does not have the financial means to retain private counsel. For the purposes of this paper, both unrepresented and self represented parties will be referred to as “SRLs” or “self-represented parties”.

2 The Honourable Madam Justice Jennifer Blishen, “Self-Represented Litigants in Family and Civil Law Disputes”, 25 C.F.L.Q. 117

3 O.Reg. 114/99.

4 For further discussion on the issue of legal bullying, see Esther L. Lenkinski, Barbara Orser, Alana Schwartz, “Legal Bullying:  Abusive Litigation within Family Law Proceedings” 22 C.F.L.Q. 337

5 R. v. Mian [1998] N.S.J. No.398 (N.S.C.A.); R. v. Romanowicz, [1998] O.J. No.12 (Ont. Gen. Div.), (affirmed on appeal at R. v. Romanowicz, [1999] O.J. No.3191 (Ont. C.A.))

6 Regina v. Taylor, (1993), 77 C.C.C. (3d) 551 (Ont.C.A.) at 567; Regina v. Littlejohn and Tirabasso (1978), 41 C.C.C. (2d) 161 (Ont. C.A.) at 173

7 Blishen, supra at 1.

8 Blishen, supra at 1.

9 Susan J. Heakes, Unrepresented Litigants – Professional and Ethical Considerations, 2008 Institute of Continuing Legal Education, Metro Toronto Convention Centre, South Building, February 4, 2008 at 4.

10 Heakes, supra at 5.

11 Canadian Judicial Counsel, “Statement of Principles on Self-represented Litigants and Accused Persons” September 2006

12 The Principles of Civility also require advance notice and consent to reasonable scheduling requests (Rules 11 to 15).

13 The Principles of Civility discuss the avoidance of sharp practice (Rule 17), which is defined as taking advantage of slips, irregularities, mistakes or inadvertence, or acting without fair notice upon such errors.

14 Heakes, supra at 9.

15 The commentary to the rule suggests that other lawyers at risk should be warned as well.

16 Rule 2 of the Family Law Rules states that the primary objective of the Rules is to enable the court to deal with cases justly.  Dealing with a case justly includes ensuring that court procedure is fair to all parties.  The court is required to promote the primary objective by actively managing cases, which includes helping the parties to settle all or part of the case.

17 The Honourable Madam Justice Trussler, A Judicial View on Self-Represented Litigants, 19 C.F.L.Q. 547

18 Blishen supra at 1.

19 [1999] O.J. No.3930 (Ont.C.A.) at 36

20 2006 CarswellAlta 1387 (A.B.C.A.)

21 Wagg v. R. 2003 CarswellNat 2128 (F.C.A.)

22 2003 CarswellOnt 5291 (S.C.J.)

23 2006 CarswellOnt 96 (Ont.C.A.)

24 Rule 52.02 of the Rules of Civil Procedure provides that "[a] judge may postpone or adjourn a trial to such time and place, and on such terms, as are just”. Rule 52.02 applies by analogy pursuant to Rule 1(8) of the Family Law Rules.

25 (1997) CarswellOnt 3796 (Ont.Gen.Div.)

26 2006 CarswellMan 186 (Man.C.A.)

27 Murphy v. Gordon 1986 CarswellNS 319 (N.S.C.C.)

28 2002 CarswellOnt 1593 (O.C.J.)

29 2004 CarswellOnt 4422 (Ont.C.A.)

30 2003 CarswellAlta 1732 (C.A.)

31 2003 CarswellSask 794 (C.A.)

32 [2004] O.J. No.1186 (Ont. C.A)

33 2004 CarswellOnt 525 (O.C.A.)

34 See Rule 17 of the Rules.

35 [1999] CarswellOnt 3955, 46 O.R. (3d) 330 (Ont. C.A.)

36 2005 CarswellOnt 7809 (Ont.C.J.)

37 2008 CarswellOnt 32 (S.C.J.)

38 2006 CarswellAlta 1246 (A.B.Q.B.)

39 2003 CarswellAlta 1806 (A.B.Q.B.)

40 see Bhoi v Bhoi 2001 CarswellOnt 4405 (O.S.C.J.) and Murano v. Murano (2002) CarswellOnt 3079 (O.C.A.), where the Court held that Rule 13(17) authorizes a court to dismiss a matter or strike any document where a party fails to obey an order to file a financial statement.

41 1996 CarswellOnt 3438 (O.C.J.)

42 2007 CarswellOnt 1977 (Ont. S.C.J.)

43 2007 CarswellOnt 1827 (Ont. S.C.J.)

44 2004 CarswellBC 347 (B.C.C.A.)

45 [2005] O.J. No.5117 (Ont. S.C.J)

46 2006 CarswellOnt 8249 (Ont.S.C.J.)

47 (2003), 40 R.F.L. (5th) 43 (Ont. S.C.J.)

48 2007 CarswellOnt 5213 (Ont. C.A)

49 The factors in determining whether or not a party is a vexatious litigant are set out in Lang Michener Lash Johnston v. Fabian (1987), 59 O.R. (2nd) 353 (Ont.H.Crt)

50 2003 CarswellOnt 2492 (Ont.C.A.)

51 2005 CarswellOnt 1839 (Ont.C.A.)

52 2000 CarswellOnt 1973 (Ont.S.C.J.)

53 Heakes, supra at 8

54 Heakes, supra at 3

55 Heakes, supra at 8-9

56 See Justice Blishen, Self-Represented Litigants in Family and Civil Disputes 25 C.F.L.Q.; Carol A. Cochrane, A Family Law Practitioner's Guide to Dealing with the Self-Represented Litigant 25, D.A. Rollie Thompson, Lynn Reierson, A Practicing Lawyer's Field Guide to the Self-Represented, 2001 C.F.L.Q., Volume 19.