The Canadian experience of litigants in person

Family Law|February 2nd 2015

These days there is no shortage of research into just about every conceivable aspect of the family justice system. So much, in fact, that the Ministry of Justice (‘MoJ’) publishes a bulletin detailing new and forthcoming research and analysis for the family justice system. The latest bulletin, the fifth, was published last week.

Most of the research referred to in the bulletin has been completed and is well known, such as the research last year by the MoJ itself into public experiences of and attitudes towards the family justice system. Some of the research, however, is less well known, at least to me. For example, the bulletin also includes a section on family justice matters in other countries, to provide an international perspective.

It is always interesting to see how experiences in and of family justice systems in other countries differ from or, more commonly, are similar to those in our own system. Take, for example, one of the research papers referred to in the bulletin, coming from Canada.

The title of the research report explains its contents: Self- represented litigants in family law disputes: contrasting the views of Alberta family lawyers and judges of the Alberta Court of Queens Bench. The report refers to two studies: one dealing with experiences of family lawyers with self-represented litigants, and the other dealing with the experiences of judges of self-represented litigants. The surveys are somewhat limited, both in the numbers involved (73 lawyers and 32 judges) and in that they don’t cover the experiences of others, particularly the self-represented litigants themselves. Nevertheless, I think some of the findings are still of interest.

The key findings were as follows:

  • The majority of both lawyers and judges felt that the number of self-represented litigants (‘SRLs’) has increased since 2009. Many lawyers and judges perceived that this increase was often due to financial reasons; for example that the costs of lawyers as too high or because the parties may not be eligible for legal aid.
  • Almost all lawyers and three-quarters of judges felt that SRLs ‘always’ or ‘usually’ had unrealistically high expectations.
  • Many lawyers and judges also felt that SRLs ‘usually’ or ‘always’ were less likely to settle and that they achieve worse results in matters regarding child and property arrangements than those who were represented.
  • Both lawyers and judges tended to think that benches treated SRLs ‘fairly’ or ‘very fairly’.

Let’s just look at those findings and compare them with our own experiences over here.

As to the first one, the primary reason for the huge increase in SRLs (or ‘litigants in person’, as we (currently) prefer to call them) in this country is, of course, the virtual abolition of legal aid for all private law family matters in April 2013. It seems that legal aid is still available in Canada, but fewer people are financially eligible – perhaps the legal aid authority over there is pricing litigants out by not increasing eligibility limits, much like happened over here prior to the abolition of legal aid.

Moving on, the ‘expectations’ point is interesting. The MoJ did, of course, publish a report into litigants in person in private family law cases last year (also mentioned in this bulletin), and that also considered the issue of their expectations. However, whereas the judges and lawyers in Canada considered that SRLs had unrealistically high expectations of outcomes, the litigants in person questioned for the MoJ research appeared to lack any expectations, primarily because they did not know what to expect. This appears to be a difference between the two countries, but it is not: the Canadian research was considering ultimate outcomes, whereas the MoJ research was considering simply experiences of the court process. Are litigants in person just as unrealistically optimistic over here regarding what they will ultimately achieve as a result of the court proceedings (without the moderating guidance of a lawyer) as they are in Canada? I’m not sure.

The next point, I think, mirrors exactly experiences over here. With those high expectations and without the benefit of lawyers, litigants in person are surely less likely to settle cases, and the ‘worse results’ point has, as I recall, been noted over here. It is a pretty obvious finding – it is trite to say that litigants in person will often not be able to present their cases as well as lawyers can present cases, and this must inevitably lead to less favourable outcomes.

Finally, I’m sure that most judges and lawyers over here believe that courts generally treat litigants in person fairly. You often come across instances where lawyers report judges ‘bending over backwards’ to accommodate litigants in person, and even complaints that litigants in person are given an easier ride than represented litigants. Of course, none of this necessarily means that the litigants in person themselves believe they have been treated fairly!

This has only been a brief glimpse into the Canadian experience of litigants in person, and I’m not sure that there are any great lessons in it for us, but nevertheless it does seem to indicate that some things are universal, whatever the system.

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