All too often, self-represented litigants are seen as a problem for judges and a headache for court administrators. To help address the challenges faced by both these litigants and the judges hearing their cases, Alberta Family Justice Services has implemented a program to assist and guide the litigant through the process.
By Justice Bryan E. Mahoney
The number of self-represented litigants (SRLs, known as “Pro Se” litigants in the USA) is growing at a rate beyond which the courts can service their needs. Despite being advised to consult a lawyer, there are those who cannot afford one and others who choose to represent themselves for different reasons. To be sure, the SRL is a permanent feature in the justice system – particularly family justice.
As long as individuals have the right to take their disputes to court and represent themselves, judges and the court system have a responsibility to provide opportunities for them to meaningfully present their case without a lawyer. All too often, however, the SRL is seen as a problem for judges and a headache for court administrators.
Research reports that the family law SRL thinks that the system does not care about them. They complain about feeling like a nuisance and being poorly treated by the family justice court system. The complexity and the formality of the process is confusing and in turn frustrating. For them, the stress and anxiety of trying to complete forms, file and serve documents, obtain dates, communicate with the opposing party, and get ready for a hearing takes its toll. Costs run up, delay occurs, and income is lost. Harm to vulnerable persons like children occurs when family law decisions are not made in a timely and cost-effective way because parties have no one to advise them.
One frustrated SRL reported that trying to navigate the justice system without a lawyer is the hardest thing he’s ever done. Although he received some help from the court’s Family Law Information Center, he found that agency was supporting a system that is archaic and a vortex of confusion, delay, and expense.
Judges report being equally frustrated. A recent Alberta survey found that judges believe that there are additional challenges in cases involving at least one SRL. They state that a settlement before trial or before the end of trial is less likely in cases where there is at least one SRL. They also feel that an SRL generally achieves worse outcomes in matters involving claims for parenting, child support, spousal support, and the division of property.
The Canadian Judicial Council, in a recent report addressing access to justice and the SLR, stated that judges, the courts, and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation. The report called for the court process to be open, transparent, clearly defined, simple, convenient, and accommodating.
To address these challenges, Family Justice Services (a part of the Ministry of Justice) in Calgary, Alberta has created an early neutral evaluation model to help meet the needs of an SRL in family law matters.
Some of the recurring SRL problems that our court regularly encounters are:
1. Lack of early or any summary legal advice. An SRL has little or no access to summary legal advice – except that offered by joining a long line-up in the corridor outside the courtroom, just before court commences, waiting to talk with duty counsel.
2. Incomplete court documents. An SRL files incomplete court documents with no legal advice or effective intake or counter assistance.
3. Uninformed of Alternative Dispute Resolution (ADR) options. An SRL ends up in court before a judge without being advised of alternative dispute resolution services or related social agency programs dealing with such issues as domestic violence, housing, support calculation, or immigration.
4. Inadequate court preparation. An SRL may appear before a judge in court before their matter is properly prepared to be addressed. This wastes their time and judicial/staff resources trying to figure out what is being asked for. Lists grow longer, matters get needlessly adjourned, and very little gets accomplished.
5. Inadequate facilities. There is no adequate counter, reception, or interview facilities to handle the volume of SRLs that need intake services and advice.
6. Frustration. With no proper intake, no summary legal advice, no ADR or social agency diversion, and inadequate facilities, an SRL loses wages and wastes expenses in coming to court where nothing meaningful is accomplished. All of the initial fears, wrong documents, wrong court, procedural faults, inadequate advice, confusion, expenses, and delays result in disappointment and anger.
In an effort to meet the needs of the family law SRL and address some of the above problems, Alberta Family Justice Services has implemented an early neutral evaluation project. The model deals with parenting and financial support issues. It is mandatory for parties who want to file a parenting or support application and who are not represented by a lawyer; parties with lawyers can access the services on a voluntary basis. Here is a brief step-by-step description of the SRL program.
Step One: Intake
When an SRL enters the courthouse and seeks to file a family law application, he or she is directed to an intake counter to speak with an intake counselor. This counselor completes a family violence screening, assesses the SRL’s needs, provides any required legal or non-legal referrals, and discusses the SRL’s options for resolving their family law issues.
For an SRL with matters within the court’s jurisdiction (some parties need other agency help), the intake counselor assists them with completing the required documents to start their court application. Once the documents are filed, the date is set for a caseflow conference. The counselor advises the SRL of the requirement to serve the other party with the court documents.
Step Two: Caseflow Conference
The SRL is required to attend a caseflow or mediation-type conference on the scheduled date. At the conference, the caseflow coordinator may do anything that could have been done by the intake counsellor plus any of the following:
- mediate a settlement leading to a consent order;
- explore options for resolution outside of the court process;
- refer the matter to an early neutral evaluation process where the parties require the expertise of a lawyer.
If no settlement is achieved, the caseflow coordinator assists the SLR with preparation for court. If, having been served, the other party does not attend, the caseflow coordinator may arrange for a court-prepared draft order for the judge’s consideration, or arrange for the application to proceed directly to a court hearing without further notice to the other party.
Step Three: Early Neutral Evaluation
If the matter is referred to the early neutral evaluations step, an evaluation officer has the same powers as the caseflow coordinator but can also assist the SRL by addressing legal issues that may be too complicated to address through other options. For example, the SRL can obtain help in understanding the law and how it may impact the facts of their case. The office can also provide assistance to define and narrow the court issues and prepare the SRL for either a more structured mediation or a court hearing.
Step Four: Court Hearing
If no settlement is reached, then the next step is a court hearing. Legally trained duty counsel and differently trained family counselors are available outside the courtroom to advise the SRL on the court process and assist in presenting the case. After the hearing, a counselor speaks to the SRL to ensure that person understands the order made by the court, the importance of compliance with court orders, and what is the next step.
This model is intended to assist an SRL at the earliest stage. The moment an SRL appears at the courthouse counter to initiate a parenting or financial proceeding, a counselor is there to help them. The intention is to make every SRL promptly aware of the procedural options and resources available. Resolution through settlement is emphasized at each step of the way by encouraging communication, mediation, and the use of court-generated consent orders. When there is no settlement, the program assists an SRL to get summary legal advice or help prepare them for court. Once a court order is made, the SRL receives information on the impact of those orders and next steps. The mandatory provision ensures that every SRL is counseled through the system in a simple, efficient, and flexible way, one step at a time.
Justice Bryan Mahoney was appointed to the Court of Queen’s Bench of Alberta in 2001. He is a member of the Court’s Executive Board and for 5 years he served as co-chair of the Court’s Family Law Committee. Prior to his judicial appointment, Justice Mahoney practised general litigation for 26 years.