Self-Represented Litigants: Can the Court Bend the Rules?
Lately, the topic of self-represented litigants comes up frequently in Canadian legal circles. In the nation’s courtrooms – especially Family Courts – the prevalence of those who choose to represent themselves appears to be on the rise. This presents challenges not only to the litigants themselves, but also to trial judges and lawyers; it also spawns corresponding concerns over access-to-justice issues and the quality and cost of the justice system.
Recently we wrote on whether, and to what extent, trial judges have an obligation to shepherd or actively assist self-represented litigants who appear before them.
In Ontario, several recent judgments by the province’s Court of Appeal serve to elaborate on the nature and limits of the assistance that trial judges may provide in this capacity. Some of the principles that derive from those decisions – and which have particular impact for those who choose to self-represent in Family Court – include the following:
- Trial judges do have special duties to self-represented litigants – including helping them get acquainted with courtroom procedures and the rules of evidence.
- In providing this kind of assistance, the judge must treat a self-represented litigant fairly, and should accommodate his or her lack of familiarity with the trial process to allow their case to be presented properly, and to the best of their ability.
- However, the judge’s duty only goes so far. The assistance provided cannot cross the line into actively representing one or both litigants in an adversarial fashion.
- The fair trial rights of the opposing parties must be respected; neither of them can be given an evidentiary, procedural, or substantive law advantage simply because they have decided to represent themselves in court.
- For example, the trial judge cannot “bend the rules of evidence” to compensate for the fact that a litigant is self-represented. In the Appeal Court’s words:
“A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.”
For the full text of several Ontario Court of Appeal decisions that deal with this topic, see:
Morwald-Benevides v. Benevides, 2019 ONCA 1023 (CanLII) at para. 34
Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37
Gionet v. Pingue, 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30
Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135 (Ont. C.A.), at para. 22
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FamilyLLB is written by Russell Alexander, a collaborative family lawyer based in Ontario, Canada who has helped his clients for over twenty years. Russell Alexander Collaborative Family Lawyers practice in all aspects of family law including separation and divorce, property division, child support, child custody and access, and spousal support.