Should self-represented spouses be given special treatment by judges during divorce?

This is a dilemma in Family Courts all over the world.  Here in Ontario, Family Court judges are faced with cases every day where the spouses are representing themselves.  Combine that with the high stakes, high emotions, and a winner-loser mentality and it is understandable that Family Court judges are often criticized and even appealed by angry litigants.

This very issue was considered by a 3 judge panel of the Ontario Divisional Court in the 2009 case of Cicciarella v. Cicciarella, 2009 CanLII 34988.

Karen Cicciarella appealed the judgment of Mr. Justice Hambly dealing with the issue of property division.  The husband had been represented by a lawyer throughout the lengthy and acrimonious matrimonial proceedings but, 3 weeks before trial, he discharged his lawyer and represented himself at trial.  The wife was represented by two lawyers at trial. 

The wife alleged that the trial judge interfered with the trial process in an unreasonable and unfair manner.  

The Ontario Divisional Court considered this appeal and indeed granted the wife a new trial by another judge.  However, in so doing, the appeal court carefully examined the epidemic of self-represented litigants and the role of Family Court judges.

Quoting from other decisions, the appeal judges wrote:

The role of a trial judge is often very demanding owing not only to the inherent nature of the case but also to the particular conduct of the litigants.  

A trial judge must exercise restraint and maintain impartiality so as to act within the scope of his or her neutral role.

The increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges. 

Leeway is allowed for a self-represented party, especially as it relates to procedural matters.

The extent to which judges should afford an unrepresented litigant additional “leeway” with respect to court procedures and the rules of evidence is an increasingly vexing problem for courts at all levels. It is generally recognized that the court should provide some assistance to an unrepresented litigant, as occurred in Barrett.  But at the same time,, this must be done in such a way as not to breach either the appearance or reality of judicial neutrality.  How to balance the sometimes competing imperatives of helping a litigant who is in need of assistance while maintaining impartiality is a recurring dilemma for both trial and appellate courts.

The judge cannot descend into the arena from the bench and advocate for the self-represented litigant.

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. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics.  It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case.  In doing so, the trial judge must, of course, respect the rights of the other party.

The problem of unrepresented parties, who may not be familiar with law and procedure, is one that is facing courts today with an ever-increasing frequency. Courts are mindful of a degree of understanding and appreciation that should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to override the rights of a defendant party.

Partly because of the increase in the number of self-represented litigants in Canadian courts…, in 2006 the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.” 

This Statement of Principles is meant to be advisory in nature.  It is not a code of conduct. Its aim is to provide guidance to judges, court administrators, members of the Bar, legal aid organizations and government funding agencies in relation to self-represented persons. 

The advisory Statement refers to a number of responsibilities expected of judges, such as the responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation and to promote access to the justice system for all persons on an equal basis, regardless of representation. 

The Principles refer to an expectation that judges will do whatever is possible to provide a fair and impartial process and to prevent an unfair disadvantage to self-represented persons. It goes without saying that in a contested family law case, in preventing an unfair disadvantage to self-represented persons, the judge must also ensure that the legally-represented litigant is not thereby disadvantaged by the judge’s conduct.

With respect to the judge’s responsibility to promote equal access, the Principles also address behaviour in which a judge may wish to engage without offending the requirements of judicial neutrality and impartiality.                  

When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

1. explain the process;
2. inquire whether both parties understand the process and procedure;
3. make referrals to agencies able to assist the litigant in the preparation of the case;
4. provide information about the law and evidentiary requirements;
5. modify the traditional order of taking evidence; and
6. question witnesses.

The Principles also address the responsibilities of the participants in the justice system, recognizing that “all participants are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness.”  

For judges, this translates into, among other things,

1.  A responsibility to inquire whether self-represented persons are aware of their procedural options and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

2.   In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights or to raise arguments before the courts. 

   For self-represented persons, this translates into, among other things, an expectation that they will (1) familiarize themselves with the relevant legal practices and procedures pertaining to their case and (2) prepare their own case. 

In conclusion, in a trial where one party is represented by counsel and the other is not, a trial judge must balance the issues of fairness and be mindful of both parties. In doing so, a trial judge should exercise restraint and should maintain impartiality. While a trial judge may wish to exercise some leeway in procedural matters to the self-represented litigant, he or she must never become an advocate for the self-represented litigant. Finally, a trial judge must not allow assistance to a self-represented litigant to result in the represented side’s rights being overridden.

Steven Benmor, B.Sc., LL.B., LL.M. (Family) is a Certified Specialist in Family Law and operates his own practice in Toronto

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