Self-Represented Litigants in Family Law Disputes

The issue of access to justice for individuals involved in family law disputes has received growing attention in recent years both nationally and internationally. A related issue concerns the rise in the number of self-represented individuals involved in family courts proceedings, and a concern that these litigants may not be receiving the type of legal services and advice they need, potentially affecting the outcome of their cases. Although self-representation may be a viable option for some individuals engaged in relatively straightforward, low-conflict matters, cases involving disputes about the care of children, relocation, allegations of domestic violence or matrimonial property are difficult to manage without the assistance of legal counsel. Some governments and agencies have attempted to address this problem by increasing the availability of information and the variety of services designed to assist self-represented individuals (Gray, 2013; Hilbert, 2009; Malcolmson & Reid, 2006; MacRae et al., 2009; Zorza, 2002).

Little empirical research has been conducted in Canada on the effects of an increase in self-representation on lawyers, litigants and the justice system in general. Two recent studies in this area (Birnbaum & Bala, 2012; Birnbaum, Bala & Bertrand, 2013) examined the views of judges, lawyers and litigants in Ontario regarding selfrepresentation in family law cases. Highlights of the findings of this study included:

• The majority of judges and lawyers surveyed reported that there has been an increase in the number of self-represented litigants in family law matters over the preceding five years.
• More than half of family law cases involve one or more parties who do not have a lawyer.
• The judges surveyed reported that if one or both parties is self-represented, the length of time required to resolve or manage the case is substantially lengthened.
• The most common reasons for self-representation are inability to afford a lawyer and ineligibility for legal aid.
• Litigants with higher incomes are more likely to have lawyers, and also have a greater belief in the value of legal representation.

It has been suggested that a distinction should be made between “unrepresented” and “selfrepresented” parties (Law Society of Upper Canada, 2008), with unrepresented litigants being those who do not have legal representation because they have no choice, usually due to financial reasons, and selfrepresented litigants being those who do not have legal counsel by choice. It is often difficult to distinguish between these two groups (Birnbaum, Bala, & Bertrand 2013), and in this report the term “self-represented” is used to describe litigants who do not have a lawyer for any reason.

• Almost one-half of the judges surveyed believe that self-represented litigants achieve worse outcomes with regards to their children than individuals with representation and almost two-thirds believe that self-represented parties have worse outcomes with respect to economic matters.
• Litigants generally believe that they will have better outcomes if they have legal representation.
• Although most unrepresented litigants would prefer to have a lawyer, a significant portion of unrepresented litigants does not expect a worse outcome because they do not have a lawyer.

A survey of family law lawyers in Alberta (Bertrand, Paetsch, Bala & Birnbaum, 2012) found that lawyers considered settlement without trial to be substantially less likely when a party is self-represented, and that outcomes regarding children’s parenting arrangements and economic issues are worse for self-represented parties than for individuals with counsel.

A survey of superior court judges in British Columbia (Gray, 2013) found that at least one self-represented party was involved in almost 40% of the court time spent on hearings in family law matters, and in almost 30% of the time spent on family law trials. The study also concluded that the involvement of at least one self-represented party in a matter impacted the efficiency of court processes by lengthening the time required for hearings and increasing the reading time of the court and the opposing party, resulting in frequent adjournments.

A recent survey of judges of the Alberta Court of Queen’s Bench (Boyd, Bertrand & Paetsch, 2014) found that judges believe that there are additional challenges in cases involving at least one self-represented litigant, that settlement before trial or before the end of trial is less likely in cases where there is at least one self-represented party and that self-represented litigants generally achieved worse outcomes in matters involving claims for child support, spousal support and the division of property.

This report presents an analysis and comparison of the Bertrand et al. (2012) Survey on Experiences with Self-represented Litigants and Boyd et al. (2014) Survey on  Self-represented Litigants in Family Law Matters, which used a number of common questions allowing for the direct comparison of the views of Alberta lawyers and those of Court of Queen’s Bench judges.

The Survey on Experiences with Self-represented Litigants was a web-based survey that was conducted with a sample of 73 family law lawyers in Alberta in June and July of 2012. The Survey on Self-represented Litigants in Family Law Matters was conducted with a sample of 32 judges attending the Alberta Court of Queen’s Bench education seminar held in Calgary, Alberta from 29 to 31 January 2014.

Both surveys asked questions regarding judges’ and lawyers’ experience with family law in general, their perceptions of and experiences with self-represented litigants in family law disputes and their opinions about the effects of self-represented litigants on case outcomes. Participants were also asked for their views on alternatives to the traditional start to finish model of legal representation in family law matters, such as the retainer of counsel for limited purposes and the delegation of certain services normally performed by lawyers to paralegals.

To read the report in full you can download it here.