1. Self-Represented Litigant’s Rights, Responsibilities & Supports

1.1 Statement of Principles on SRLs

In 2006, the Canadian Judicial Council issued a statement of principles on self-represented persons to foster access to justice and equal treatment under the law. Read the full statement of principles here. The following are the highlights of the statement.

To promote rights of access

Access to justice for those who represent themselves requires that all aspects of the court process be open, transparent, clearly defined, simple, convenient and accommodating.

The court process should, to the extent possible, be supplemented by processes including case management, alternative dispute resolution (ADR) procedures, and informal settlement conferences presided over by a judge.

Information, assistance and self-help support for self-represented persons should be made available through the normal means of information, including pamphlets, telephone and courthouse inquiries, legal clinics and internet searches.

All self-represented parties should be:

informed of the potential consequences and responsibilities of proceeding without a lawyer; and
referred (see Section 17: Resources) to available sources of representation, including those available from Legal Aid, pro bono assistance and community and other services, and to other appropriate sources of information, education, advice and assistance.

To promote equal justice

Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

Self-represented persons should not be denied relief on the basis of having a minor or easily rectified deficiency in their case.

Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.

Depending on the circumstances and nature of the case, the presiding judge may:

explain the process;
inquire whether both parties understand the process and the procedure;
make referrals to agencies able to assist the litigant in the preparation of the case;
provide information about the law and evidentiary requirements;
modify the traditional order of taking evidence; and
question witnesses.

Responsibilities of the participants in the justice system – both justices and court administrators

Judges and court administrators should meet the needs of self-represented persons for information, referral, simplicity and assistance.

Forms, rules and procedures should be developed which are understandable to and easily accessed by self-represented persons.

To the extent possible, judges and court administrators should develop packages for self-represented persons and standardized court forms.

Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.

1.2 Right to Represent Yourself

You have a right to represent yourself. You are allowed to appear in court without a lawyer. However, it is highly advisable to get a lawyer if you are able to do so. Lawyers provide experience and legal expertise that help to reduce the stress and time of a legal case. They can also provide you with valuable advice that can help you prove your case. There are often many emotions and life changes involved and it will be important to have support in place to help you with the new social, relationship, parenting and financial changes you will be dealing with. A lawyer can help with the legal aspects of your case, which will allow you to better take care of yourself and your family.

1.3 Your Responsibilities

If you choose to represent yourself, you are expected to prepare your own case. The information in this Handbook is intended to assist you to do so.

You are responsible for learning about the court process, the rules and the law that relates to your case. As the saying goes: Ignorance of the law is no excuse. The fact that you do not have a lawyer will not excuse you from having to follow court rules and processes.

You have the right to be in the courtroom throughout your hearing or trial. However, that right is not absolute: if you disrupt the hearing, the judge can require you to leave the courtroom. If you do not follow the judge’s orders, you can also be found in contempt of court. The punishment for contempt of court may include a fine or jail.

1.4 Role of the Judge

Judges ensure that the case is dealt with fairly and impartially, and also ensure that the law of evidence and court procedures are followed. Judges hear from witnesses, assess the credibility of witnesses’ evidence, consider arguments, and make decisions based on the law and the facts as they find them.

Judges cannot provide you with legal advice. They cannot tell you how to protect your rights or how to run your case. They must remain neutral and unbiased. Judges may however provide you with information about the process and help explain and clarify what is happening. If you do not understand what is happening or what you are being asked to do, be sure to ask the judge.

1.5 Communication

Note that this is just an introductory section. For more detail, see Section 3 Communication.

Family restructuring is complicated. The challenges you are dealing with may include social, relationship, parenting, financial and legal issues. It is easy to become emotional about these matters, especially if you don’t have supports in place. If you are not able to manage your emotions, they may cloud your judgment and you may make bad decisions. Many of the emotions associated with family separation are understandable, as there are significant changes taking place in all aspects of your life. Even so, you cannot afford to let emotions affect your ability to reach a positive outcome.

Warning: If your former partner communicates in a way that makes you or your children feel unsafe, you need to protect yourself and your children. See Section 15: Family Violence for more information.

Communications with the other side

Communicating with the other side is not easy, especially if it is a former spouse or partner. Your relationship has changed and you are not going to be talking to each other the way you used to when you were a couple. These changes have probably been emotional, but you cannot let behaviour and emotions control how you communicate. The better you communicate, the easier, cheaper, and quicker it will be to settle your family case.

Communication tools

When stress levels are high and emotions are sensitive, meeting face-to-face may make it more difficult to reach agreement. Thankfully, there is no shortage of communication alternatives these days. You can choose to communicate a different way, like by telephone, through e-mail, by texting or using a parenting app.

Choose the right communication channel that works for both of you. Some conversations might be best face-to-face, while others are better through a phone call, email, text or online app.

For more information on constructive communication and supports to assist you with the social, relationship, parenting and financial challenges that can cause stress at this time, see Section 3 Communication.

Communication with the Court

Usually, court staff will help you as much as they can. If court staff refuse to help you with something, it may be because they are not permitted to give the help you are requesting. It is important to understand that court staff have boundaries they cannot cross (see: https://www.nsfamilylaw.ca/sites/default/files/video/legal_advice_poster_final_july_2014.pdf) , from Nova Scotia, based on the work of Professor John Greacen, for information on what Court staff can and cannot do to help self-represented litigants. Simply put, they cannot give you legal advice which means they cannot tell you if your forms are filled out correctly or not. Nevertheless, it is important to follow proper decorum and respect for court staff and judges at all times – which will encourage as much assistance as they can provide.

Communication with the Judge

Do not try to contact the judge outside of the courtroom. In general, communication with the judge should take place through formal processes, such as through filing of court forms or affidavits. In the exceptional circumstances, where permitted by the Court outside a hearing, where you need to send any letters or information when you are not in a hearing, send it through the court staff. Make sure to send a copy of everything you are sending to the Court to the other parties / their lawyers. This is because the judge cannot communicate with one party alone—any communication from the judge to one party must be shared with all other parties. Please note that letters sent to the judge through the Court may not end up forming a part of your court file and, unless directed by the judge, cannot constitute evidence in your case.

1.6 Non-legal Supports

Separation and divorce can be highly emotional. The adversarial nature of court processes tends to make it difficult for parents to maintain the type of relationship that you need in order to continue to parent together. When you are separating or divorcing, you need to access the kinds of support that will help you to move forward in your new family structure, in a way that is healthy for you and if you have them, your children. While this means different things for different families, it includes getting the kinds of support that will help to address the emotions your family members are feeling and to promote well-being, even as your family is experiencing the pressures of family restructuring. Examples include:

Learning how to “parent apart”.
Moving forward in a new and different relationship as parents (co-parenting).
Planning for the financial challenges of creating two households.
Learning how to handle the legal challenges of separation and divorce.

While there are often legal matters to be addressed at the time of a separation or divorce, many of the issues you and your family will deal with are social, personal, or financial in nature rather than legal. Many separation issues are best dealt with outside of the court system. Non-legal support services are available to help you and your former partner create a new stable relationship including parenting your children, apart.

These non-legal supports are often available from government services, through collaborative family practice, and through private service providers and include:

Mediators
Family and psychological therapists
Co-parenting experts
Stepparent supports
Grief counsellors
Life coaches
Financial advisors
Mortgage brokers
Insurance mediation strategists

See Section 17 Resources for support in your region.

1.7 Resolving Your Case Without Going to Court

Going to court and having a trial is not the only way to resolve a family issue. Most issues can and should be dealt with away from the courts, between parties, without trial, and even without starting a legal case. When you resolve matters out of court, you, as parents, can be empowered to restructure your family in a way that works best for you and your children. There are many supports to assist you in resolving your issues without going to trial that are quicker, cheaper, and more private. Resolving your case outside court through compromise and negotiations gives you the most control of the outcome, instead of having a third party, a judge, impose a decision on the parties. To learn more about resolving your family law case without going to court, see Section 4 Alternative Dispute Resolution.

1.8 Legal Help

Free or low-cost lawyers

If you do not have a lawyer because you cannot pay for one, you can try applying for a legal aid lawyer. There are certain criteria such as income level or type of case that allow you to qualify for free legal aid. Check with your local legal aid provider to see if you qualify. If you do not qualify for legal aid, check to see what other free or low-cost legal services are provided in your area. There are often legal clinics, law student programs, and non-profit organizations that can provide some legal advice. Check out Section 17 Resources for listings of services in your community.

Legal advice

Many lawyers will offer a short initial interview for free or at a low cost, whether or not you ultimately decide to hire them. If you cannot afford a lawyer to represent you throughout your case, you might still be able to get help from a lawyer. A lawyer might provide limited services to a client. Lawyers call these services "unbundled" or "limited scope" legal services. If you think you can handle some parts of your case, you can pay a lawyer to do the parts that you cannot/do not wish to do. It is an arrangement where you pay only for what you want. It is a mid-way option between full legal representation and no legal representation.

Here are some examples where you might pay a lawyer for limited or unbundled services:

You pay the lawyer to research the law for you and explain how much money, if any, you will likely receive or have to pay if there is a claim for spousal / partner support. The lawyer’s advice will be based on other similar cases that have gone to court.
In your claim for property division, your lawyer helps you prepare the documents that are necessary for the court hearing, and gives you advice on how to make your own application in court.
In a claim against you for child support, you talk to a lawyer about your obligations and what documents you need to prepare for the court hearing. You prepare your own court documents and hire the lawyer to represent you at the court hearing.

Your lawyer will prepare a retainer letter that sets out:

The lawyer’s responsibilities and the work that he or she will do (and not do);
Your responsibilities and the work that you will do by yourself; and
How the lawyer’s fees for their work will be calculated.

Even if you do not hire a lawyer to help you with your case, it is a good idea to consult with one at the beginning of your case. They can advise you of what your legal rights and responsibilities are, may help you to reach an agreement with the other side, and can advise you know whether you need to start a family court case.

Your case may be complicated. If you go ahead without a lawyer, you may not have the same advantages as you would if you had a lawyer. So, make sure to exhaust all methods of getting legal advice available to you.

Preparing to meet with a lawyer

Your first meeting with a lawyer is an important step in dealing with your legal dispute. In addition to giving you a chance to meet each other, you can also learn a lot about your legal dispute, and what the result is likely to be. The more prepared you are, the more cost-effective you can make your time with a lawyer.

What a lawyer will want to know:

Basic information: A lawyer will want to know your situation and the reason that you decided to consult him or her.
All relevant information: It is very important to tell the lawyer everything that is related to your dispute, not just the information that supports your side of the story. “Relevant” means that the information tends to prove a matter of fact significant to the case. It is sometimes difficult to know what is relevant and what is not, but the lawyer will help you sort this out.
The truth: It is important to tell the lawyer the truth so they can advise you properly. What you say to the lawyer remains confidential – your lawyer is generally not allowed to tell the other side what you tell them (that information is privileged, subject to some very narrow exceptions to this rule). A lawyer cannot act for you, if you are planning to lie to the court in any way.
Documents: You must also provide all relevant documents to the lawyer. Take a file of documents to your appointment containing such things as letters, court documents, receipts, invoices, and agreements.
Previous representation: A lawyer may also want to know if you have had a lawyer represent you in your family law matter before.

It is a good idea to write down in advance the basics of your case and questions you want to ask the lawyer. You should also ask about other ways to resolve your dispute without going to court, like a separation agreement, parenting agreement, negotiation, mediation, collaborative practice, or arbitration (arbitration may not be available in some provinces – e.g. Quebec).

Review the Questions to Ask a Lawyer Worksheet to get a better idea of what to ask a lawyer.

1.9 Questions to Ask a Lawyer Worksheet

Download the Worksheet

Documents to take to your first meeting with a lawyer:

A written summary of the facts in your dispute, including whether you have children, and questions about parenting, spousal and child support, where you will live, and property division.
Important documents, relating to your dispute, such as letters, invoices, receipts, employment income for you and your spouse / partner, tax returns, business income, personal and business assets of you and your spouse / partner, photographs, court documents, agreements, and contracts.
Personal contact information, including your personal and business addresses, telephone numbers, email addresses.
Contact information for potential witnesses.

Some of the following questions may not apply to your situation. Read the following questions before visiting a lawyer and cross off the questions that do not apply to you.

How does the law affect my situation?

What are my options – for resolving the dispute out of court, or in the court?

What experience do you have with similar cases?

How would you handle my case?

What legal risks am I facing?

How can I settle the case?

How long will my case take?

What documents do I need to support my case?

Do I need statements from witnesses?

What is the court likely to order?

If I am successful at trial, how can I collect money after the judgment?

What types of fee options do you offer? What is your hourly rate?

When will I receive bills from you, and when am I expected to pay?

How can I reduce the cost? Can I handle some of the legal work myself?

Do I have payment options?

Do you need a retainer right away (deposit in advance)?

How is it best to contact the lawyer, and how soon can I expect a reply? Do you charge for phone calls, emails and mail?

What do you expect from me? What can I expect from you?