Families hurt by lack of legal representation: study

A new study has revealed that the increasing number of self-represented litigants is creating serious problems for the family court system.

The study, conducted by Queen’s University professor Nicholas Bala and University of Western Ontario professor Rachel Birnbaum, surveyed 325 family lawyers at the Law Society of Upper Canada’s Family Law Summit in Toronto in June.

“There is growing concern about litigants without lawyers, especially for family cases, which are often complex and have profound effects on litigants and their children, and where the judgment of litigants is particularly prone to be being influenced by emotions,” says Bala.

Their findings include:
  • In 27 per cent of family law cases the opposing side had no lawyer at all and another 21 per cent had no lawyer for part of the case.
  • In the last five years, 81 per cent of respondents said there were either many more or more cases with litigants without representation, 19 per cent said it was roughly even, and no one reported fewer litigants without representation.
  • The inability to afford a lawyer was listed by 96 per cent as the most important or an important reason for the increase.
  • In terms of the reasons that litigants represent themselves, the respondents said they think they can do as good of a job as a lawyer or want to confront their former partner in court.
  • More than 90 per cent said when the opposing side is not represented it increases the costs for the represented side.
  • 57 per cent reported that judges treat litigants without representation “very well” and 31 per cent think judges give “good treatment” to them. Almost 90 per cent said their clients are sometimes or always concerned that the judge seems to favour the unrepresented side.
  • Most respondents reported that unrepresented litigants often have worse outcomes than they would if they had a lawyer, especially family violence victims who are in need of protection.

Despite the Ontario government’s efforts to improve access to information about the family court process, the majority of respondents give little value to its programs, the authors note.

The authors suggest “unbundling” of legal services with lawyers offering partial representation as a way to decrease the number of litigants who represent themselves in court.

“There is no single or simple solution to these problems, but it is clear that the challenges posed by family litigants without lawyers needs to be better understood and addressed,” says the study.

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