The Challenges Facing Self-Represented Parties in Family Court

When a person finds themselves in a legal dispute requiring litigation, one of their first steps will almost always be to retain a lawyer to represent their interests. Lawyers not only strategize on how best to advocate for their client’s interests and communicate those interests in court, but they also help their clients navigate the complex rules and requirements of managing a case. This includes managing detailed time deadlines, drafting documents, arguments and responding to submissions from the other party.

It’s no secret that paying lawyer’s fees for courtroom litigation can be a sizeable expense, particularly in complex or highly contentious cases requiring a lengthy trial, or repeated appeals. To save costs, or because they prefer to handle the matter on their own, some litigants choose to represent themselves in court. This is permissible in Alberta, however, litigants should be aware of their obligations and the obligations of the other parties involved when it comes to keeping them informed of the process. Courtroom litigation has many steps and formal requirements. Failure to adhere to those can not only prejudice a party before the judge but also result in additional fees and other costs. Below, we will provide an overview of what a self-represented litigant (SRL) can expect if attempting to manage a family law dispute on their own.

Canadian Judicial Council Statement of Principles on Self-Represented Litigants

Every party entering into litigation in Canada has a right to a fair hearing and to equal protection under the law. This includes those who choose to represent their own interests in court; this decision alone should not have a detrimental effect on a person’s access to justice. To address delays and unfair prejudice to SRLs in courtrooms across the country, the Canadian Judicial Council (CJC) adopted a formal Statement of Principles on Self-Represented Litigants (the “Statement”) to provide guidance to all parties with respect to their rights and obligations when there is a SRL involved in a matter. The Statement puts an onus on the judge, the opposing counsel and court administrative staff to keep the SRL informed of their obligations. It also places a degree of responsibility on the SRL to keep themselves informed and aware of their obligations to avoid unnecessary delays or placing an unfair burden on the opposing party.

Obligations of the Court and Opposing Counsel

When overseeing a matter in which one party is self-representing, a court is obligated to ensure the SRL is informed of certain aspects of their role. At the same time, this does not mean the court is required to dedicated an inordinate amount of time to educating the SRL. For example, a court might be expected to provide leeway to an SRL who makes minor mistakes in process or in form. Additionally, a court should make the SRL aware of all resources available to them to assist with their management of the hearing. In the steps leading up to the trial itself, a judge should make attempts to ensure the SRL is aware of their obligations and provide information where appropriate.

Opposing counsel is in a unique position when they are facing an SRL in court. Firstly, they are under an obligation to not take advantage of the opposing party’s lack of experience or understanding of procedure to further their own clients’ agenda. On the other hand, there is often an unfair burden placed on the opposing counsel to take time to explain procedures and steps to the SRL, which can result in higher legal fees for their own client. Opposing counsel must strike a balance of keeping the process fair for the SRL while not placing themselves in the position as acting as de facto counsel for both parties.

The Responsibilities of the Self-Representant Litigant

There is often a great deal of significance attached to the outcome of a family law decision. It might impact the parties’ ability to see their own children or have a drastic effect on their rights and obligations around paying or receiving support. As a result, any person who chooses to represent themselves should be prepared to take the time to educate themselves on the process to be sure they are doing everything they can to advocate for themselves.

The CJC’s Statement recognizes not only the responsibilities of officers of the court to assist SRLs but the role of the SRL themselves. Choosing to advocate for yourself is not a decision to make lightly and an SRL cannot simply expect the more experienced participants to hold their hand throughout the proceeding. There are many options available to help SRLs learn more about their obligations, understand the law and the specifics relating to family court in Alberta. The Statement specifically places the following obligations on any SRL:

1. Self-represented persons are expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case.
2. Self-represented persons are expected to prepare their own case.
3. Self-represented persons are required to be respectful of the court process and the officials within it. Vexatious litigants will not be permitted to abuse the process.

The Alberta government has created a counselling service specifically for those who choose to represent their own interests in family court. The service is designed to help SRLs with the following:

• prepare for court
• navigate your family law matter through the Provincial Court
• discuss your issues, explore your options and get you referrals
• get a court order prepared and filed with the Court of Queen’s Bench and then have copies sent to the other party – after a parenting-related hearing
• review your divorce before its submitted to the Court of Queen’s Bench

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child custody and access, spousal and child support and all other issues pertaining to separation and divorce litigation. disputes following the breakdown of a relationship. We will work with you to ensure a custody and access arrangement that fits your family’s specific circumstances and places the wellbeing of your child(ren) front and centre. Contact our office today by calling us at 403-910-3000 or contact us online.