What happens when one spouse has a lawyer and the other spouse chooses to not use a lawyer

The issue of self-representation in Family Court has become an epidemic.

Those spouses with very low income can obtain free legal advice and representation from Legal Aid Ontario. Those spouses with high incomes can usually afford a private lawyer.

However, the vast majority of Ontarians are middle class and simply cannot afford to retain their own lawyer, resulting in a huge number of separating spouses representing themselves in Family Court.

On one hand, the highly demanding nature of a Family Court case, coupled with the high cost of operating a law practice, render legal advice and representation from private lawyers very costly.

On the other hand, every parent forced to defend a CAS proceeding or facing a child custody hearing must have legal advice and representation, and not be forced to navigate through the court system, prepare important court documents, deal with opposing counsel and make representations to judges on their own.

The situation is further aggravated when the person needing a lawyer is a victim of domestic violence, an immigrant or the weaker party.

The absence of lawyers in such Family Court cases is a disservice to the public, to the legal profession, to the court staff, to the judges and, most importantly, to the unrepresented spouse.

In the Divisional Court decision of Cicciarella v. Cicciarella released on June 30, 2009, the 3 judge panel considered this very problem. In that case, the wife appealed a trial judgment dealing with property division.

The husband had been represented by a lawyer throughout this court proceeding and then, three weeks before the trial, he discharged his lawyer and chose to represent himself. On this appeal, the wife claimed that the trial judge interfered with the trial process in such an unreasonable and unfair manner that the trial judge precluded her lawyer from calling relevant evidence, restricted her lawyer’s cross-examination of the husband, conducted his own improper examination of the husband and refused to listen to her lawyer’s arguments.

The issue of unrepresented litigants is a challenge for trial judges

The panel in Divisional Court stated that the increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges. They stated that 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.

The panel stated that it is generally recognized that the trial judge should provide some assistance to an unrepresented litigant. 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.

The 3 judge panel wrote that “the judge cannot descend into the arena from the bench and advocate for the self-represented litigant.”

There is a now guidance to follow when dealing with unrepresented litigants

The problem has become so grave that, in 2006, the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.”

The 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 panel in Divisional Court concluded that where one spouse is represented by a lawyer and the other is not, a trial judge must balance the issues of fairness, be mindful of both spouses and not allow assistance to a self-represented spouse result in the represented spouse’s rights being overridden.

In the end, the wife’s appeal was granted, the case was sent back for a new trial and the husband was ordered to pay costs of the appeal in the sum of $17,666.

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