In a ruling a University of Windsor law professor calls “a new watershed” in the justice system, an Ontario court judge has refused to grant state-funded legal counsel for a self-represented family court litigant partly because he found she is intelligent enough to represent herself.
Rhonda Nordlander has been trying to get access to her children, who live with her ex-husband. She cannot afford a lawyer, she says, and has exhausted all appeals to get legal aid.
In May, Nordlander told Law Times each time she leaves the courtroom, she experiences an episode of what she calls “post-traumatic court disorder.”
“I’m not intelligent enough for this,” she says. “I’ve read the Family and Child Services Act and everywhere in that act refers to another subsection, which is completely confusing. It’s an 88-page document in small print and two columns. It’s overwhelming.”
But in a ruling last week, Ontario Court Justice Patrick Dunn sounded confident Nordlander knows what she’s doing.
“The applicant is intelligent and able to articulate her own plan of care for the children. She will be able to question [Children’s Aid Society’s] witnesses on why they take the positions they do,” he said. “The applicant was correct to comment today that constitutional issues argued today were beyond her understanding. However, there will likely not be such issues in the CAS trial.”
Julie Macfarlane, law professor at the University of Windsor, published a report in May highlighting the plight of self-represented litigants, who are especially prominent in family courts. She says her study found even the most qualified people, including lawyers themselves, are unable to cope with self-representation when they are personally vested in the matter.
“She’s talking about an issue that’s about her future relationship with her children,” Macfarlane says of Nordlander’s case. “I think the assumption that this is something that’s OK for someone who is deemed intelligent enough to do it themselves is quite shocking.”
The judge also said even if Nordlander is able to get state funds for counsel, she would have a hard time getting a lawyer willing to take on a case she has handled by herself for so long. This point was a “very important rationale” in his decision, the judge said.
“The applicant has already approached several lawyers who declined to become involved and even if the applicant found a lawyer, there would be delays while that lawyer familiarizes himself with the case,” Dunn said. “I would even question how long the applicant would be satisfied with the performance of her lawyer, because this applicant is always going to understand the issues better than her lawyer because she has lived through the history of the case, and personally knows the important persons involved.
“This case needs a resolution as soon as possible. I believe that the delay in finding a lawyer acceptable to the applicant and for that lawyer to come up to speed will cause delays that are unnecessary when the applicant is capable of representing herself.”
The argument “puts me in a corner,” says Nordlander. “It’s either I delay the child protection proceedings . . . or I try and get a lawyer because I’m really afraid to get into court with all these cards stacked against me.”
Still, Nordlander says she had spoken to lawyers who said they would represent her if she had a legal aid certificate.
Macfarlane says her research has shown self-represented litigants have a hard time finding legal representation later on, but that should not mean they must tough it out themselves.
“What the judge is essentially doing is buying into the reality that people can’t afford to maintain counsel and once they’ve lost counsel, they have great difficulty persuading someone to represent them again.
“And his solution is you’re intelligent enough to do it yourself. And I just can’t possibly see how that can be a fair solution.”
Nordlander says she has already depleted her resources when she spent $26,000 in legal fees on top of $15,000 for custody assessment. She says she is considering an appeal of this decision.