A judge’s view on one of the biggest problems facing the justice system

Charlie Gillis talks to Justice David Price about more people representing themselves in court

Justice David Price of Ontario’s Superior Court of Justice conversed by email with Maclean’s national correspondent Charlie Gillis about the growing phenomenon of self-representation in court, and how the justice system is responding. Justice Price noted that his views are based on his personal experiences as a judge in civil and family proceedings, and that he was not speaking on behalf of the court.

Q: How prevalent in your experience is self-representation?

A: The docket sheets indicate that at least one of the litigants was self-represented in 40 per cent of the family conferences, and in half of family law and civil motions. To estimate the prevalence of self-represented litigants in the courts where I preside, I have reviewed my daily docket sheets for a representative 30 day period last year. The work that I did during that period consisted mainly of conferences in family law cases, pre-trial conferences in civil cases, and motions in family law and civil cases.  None of the pre-trial conferences in civil cases involved self-represented litigants.

Q: What effect does it have on the good operation of the courts?

A: A greater burden is placed on the litigants and the court system by the reduced likelihood of settling outside of court. If the litigants are not able to supply the necessary evidence and legal argument, the judge’s task and the time required to perform it will be greater. These factors may result in the disappointed expectations of both the litigants and the judge—with the frustration that this naturally entails. The judge is disappointed to find that fewer cases on the list settle, that more cases require the judge’s decision, and that more time is required to sift through evidence that the litigants have not properly organized, and to research the law that the litigants have not provided in their argument. The litigant is disappointed to find that the judge cannot decide the case immediately based on the evidence that has been tendered and the limited legal argument that has been made. These frustrations can result in an experience that is unsatisfactory to everyone.

Q: You note that self-represented litigants are less likely to settle. What does that mean to a judge and to the court?

A: The effect can best be understood by reference to the role courts perform in the resolution of disputes. In most civil and family disputes, there are significant advantages litigants can derive from resolving their disputes themselves. These include the quality of a decision the litigants may possess that the judge may not, the expense of lawyers being required to filter the information which the litigants possess through the rules of evidence and procedure so that it can be accepted as evidence, the greater closure that can come from the litigants’ settlement of their dispute, and the impact that a trial may have on the litigants’ relationship with each other and those affected by the dispute. To maximize these advantages for the litigants, most judges do what they can to help the litigants negotiate a settlement of their disputes. They decide the case only if the litigants are unsuccessful in settling it. The efficient processing of cases in court naturally depends, in large part, on how successful the litigants are in resolving their own disputes.

Q: Why role can lawyers play in that process?

A: Self represented litigants, without the consultation of a lawyer, may not fully understand the advantages to them of settling outside of court.  If self-represented litigants do not understand the advantages they can derive from a negotiated settlement, they will be less likely to make the necessary effort to settle and more likely to leave the decision to the judge. The self-represented litigant may also lack the knowledge and experience needed to predict the likely outcome of their case at trial, or to compare that outcome with the options available for settlement. They may therefore be less successful in settling their disputes, which may increase the number of cases the judge must decide.

Q: I imagine that can affect everyone in the process, including the judge.

A: If the self-represented litigant lacks experience of the litigation process, they may not understand the extent to which the judge’s ability to arrive at a proper decision depends on relevant evidence being adduced and organized, and necessary argument on the law being provided. Self-represented litigants who lack this understanding may have unrealistically high expectations of the judge.

Q: The stereotype of the self-representing litigant used to be that of a deluded person—typically with no means, perhaps mentally unstable—pursuing a hopeless cause. How far is that from the reality now seen in our courts on a daily basis?

A: Using stereotypes of any kind to describe litigants tends to over-simplify a legal landscape that, by its nature, encompasses society as a whole in all its diversity. Litigants represent themselves for a multitude of reasons. These include a lack of financial resources; a limited understanding of the legal system and the costs and benefits of legal representation; the death or incapacity of a lawyer initially retained; and a litigant’s inability to give the necessary instructions to a lawyer by reason of language, culture, or intellectual or mental incapacity. The unrepresented litigant today may be the perfectly competent defendant in a domestic dispute—a single, or soon to be single—mother, or father.

Q: Is this a trend you expect to continue?

A: Higher costs of legal representation, economic hardship, and greater public access to legal data bases will continue to lead to greater numbers of litigants who choose to represent themselves in court. The court must respond effectively to the growing numbers of self-represented litigants, and governments must recognize the demographic changes among those using the courts.  It must provide the court with adequate resources to continue serving the public effectively with the same high quality of justice it has delivered in the past. This is essential if the public’s access to justice is to be preserved.

Q: What happens when mental problems do come into play?

A: Problems, including mental illness or personality disorder, that can cause a litigant’s case to be rejected by a lawyer, do not automatically disqualify a litigant from appearing in court. It’s therefore incumbent on the court to identify factors that impair a litigants’ ability to represent themselves. We must adopt strategies that enable ourselves to accommodate such litigants’ needs effectively, while preventing their problems from interfering with other litigants’ access to the courts.

Q: Even when self-represented litigants have no mental issues, do judges have to have to take steps to ensure they get a fair shake?

A: A judge may try to empower self-represented litigants by explaining how the court system is designed to facilitate their negotiation of a settlement of their own dispute, and the advantages that they derive from resolving the issues in that way. I personally refer self-represented litigants, especially in family law cases, to books they can access to improve their ability to communicate with each other in a conflict, and to improve their understanding of the challenges they face in separation and divorce, and as parents when creating two households for their children following separation.

Q: Are there other resources available to them?

A: I inform litigants of the resources that are available to them on the internet, such as on the Ministry of the Attorney General website, and the CanLII legal database, containing information, such as the Federal Child Support Guidelines, and Advisory Spousal Support Guidelines, that the court will likely apply in their case. I advise them of the public mediation service that is available at the courthouse, and of resources such as the Office of the Children’s Lawyer, Supervised Access Centres, Drug and Alcohol Assessment and Treatment facilities, and certified valuators of property, businesses, and income, that may help them resolve the issues in dispute between them. My colleagues and I also provide, at trial management conferences, a memo to self-represented litigants describing what will be expected of them at their forthcoming trial.

Q: How in your experience are so-called “self-reps” treated by others in the legal profession?

A: Both the Ministry of the Attorney General and the Courts have created web-sites that are increasingly “user-friendly” to empower self-represented litigants to make effective use of the legal system to resolve their disputes. The Divorce Act imposes a legal obligation on lawyers to inform clients of the resources that are available to them in the community to help them explore the possibility of reconciliation. Whether the goal is to enhance their ability to do that, or simply to help them separate more fairly and amicably, lawyers need better information about the resources that are available in the community. Governments could provide a more useful service as a conduit for such information




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A judge’s view on one of the biggest problems facing the justice system

  1. Justice David Price spouts the propaganda according to the Judiciary while accurate fails to deal with the real issues that “clog the courts”. His comments are all directed at the less than substantive issues, which is the tactic of the judiciary, to fail to accurately address the issue and engage in the process of justification to make political decisions rather than legal decisions.

    Take Family Court,there is almost no point in attending court. Decisions are made on a gender basis, its “Male Sharia Law”.

    As for “self reps”, judges encourage lawyers to fabricate evidence, to become witnesses, while representing their clients. The same lawyers pit their credibility as officers of the court against that of a self rep who judges regard as vermin to be exterminated, and
    exterminate they do.

    Father’s and children have no legal rights in Canada and for that
    you can thank the dead beat judges who encourage lawyers to fabricate evidence
    and together, this cesspool of humanity, create endless destruction.

    Real crime? It starts in Family Court and end in Ontario’s Gulags for men
    which is where often men end up for no other crime than being born with testicles.

    http://www.OttawaMensCentre.com

  2. When I read an article that I know some facts about the subject,the author often gets a key point dead wrong , that makes me question the truth of the whole thing. Lawyers do not charge between $400 and $600 per hour. It’s more like $250. Are you basing your article on downtown Toronto?.

  3. This is typical lawyer propaganda. The problem in Family Court is completely incompetent lawyers and judges a number of whom engage in criminal activity to line their pockets with applicant’s and respondent’s money. I am going to trial within a month as a self represented litigant where I will prove divorcemate’s spousal support calculator is a fraud, the child support guidelines are a joke, conferences are a waste of time, financial statements are prepared by lawyers who have no clue how to prepare one and judges who have no clue how to read one. I could go on and on. If any respondent’s or applicant’s are reading this, here is rule #1 DON’T GET A LAWYER! Waste of time and money. The only way we are going to get rid of these morons is by not using them. Or hopefully my trial will end the profession of family court lawyers for good!!!

  4. The lawyers are complicit with the evil-empire better known as family court. Does anyone really believe otherwise?
    How can the lawyer sit next to some father in the morning trial and assist him in trying to take the kids away from the mother then turn around and come back to court in the afternoon
    and sit next to some mother to assist her in trying to take the children away from their father!? It’s a complete shame but the worst part is ‘we the people’ seem to be just fine with this….

  5. everyone i am so happy that celebrating this past Christmas with my husband after leaving me for about 5months and i never thought he was going to come back again because he was with another woman which he said he love so much and ever since my life have never remain the same because i love him with all my heart and my kid was not having father to call on so one day i saw a testimony on the internet after i have read about what many people have said about so many spell cast i just chosen to contact ekakaspelltemple@yahoo.com for help and his quick respond was very well appreciated by me so he ask me to do somethings which i did and after 1day i receive a call from my husband telling me that he is going to come back home tomorrow and it was just like a dream to me we have been together for 2months and some days now and we are very happy together thanks to you Ekaka you are the best.

  6. Blaming the citizens for the problems in the justice systems sounds like something a lawyer or ex-lawyer (judge) would do. A self critique of the problems in our justice system will do nothing to repair it. Judges are ex-lawyers and 99% remain loyal to their former profession – lawyer. Anyone with an average IQ and the time can make most practising lawyers look foolish in court. These judges (ex lawyers) rule against the average self-represented litigant because they refuse to be blackmailed into paying one of their colleagues outrageous legal fees for defence and promoting the growth of their industry. Have you ever seen an unemployed lawyer or judge looking for work? 99% of court cases in Canada are decided without a jury. Justice in Canada is determined by lawyers and not the public. For reasons that are obvious, this judge’s opinion is biased and without judges and lawyers becoming accountable to the public rather than to themselves, there is no real justice in Ontario or Canada.

    • good points made.

      • and some that were not so good.

  7. @ Ottawa men’s centre “s for “self reps”, judges encourage lawyers to fabricate evidence, to
    become witnesses, while representing their clients. The same lawyers pit
    their credibility as officers of the court against that of a self rep
    who judges regard as vermin to be exterminated, and exterminate they do.”

    So true. Usually they commit hold-up robberies against self reps by claiming discretion. The law in Canada now is very discretionary. Justice will return when the government outlaws these judicial hold-ups

    These days affidavits read, I am john Brown legals assistant to lawyer So and So and as such I have personal knowledge of these matter herein . . How in Heavens name can so many judges accept these affidavits? The legal assistant cannot have personal knowledge of any thing. All they have is what is contained in Mr So and So file

    • Who do you think does all the work in a law firm? The legal assistants and law clerks know the files inside out.

      • You said it, “in the law firm”. Do the incidents that give rise tot he facts of the case occur “in the law firm”? You miss the point totally. The legal assistant and lawyer etc only knows what’s in their file.It is impossible for those people to have personal knowledge of the matters deposed to.

        Again, they only know what’s in their file

  8. Justice Price is a judge who abuses his judicial duty. I was in hospital this past February and my ex abducted our 2 boys and I haven’t seen them since. I went back to court yesterday, December 16, 2013 to try again for the 3rd time since October and Justice Price was sitting on the bench.
    Justice Price in February took all my parental rights away at that time based on false allegations, and my ex coming under “Bad Faith” with no evidence or justifiable reason and this judge took my children away and all my parental rights.
    He was disrespecful to me, he discriminated against me yesterday, due to my financial hardship which was caused by him not following the family court law when placing child support, which was also done while I was in hospital in February. It was just the beginning of the year and he placed a child support order that was based on his guess of what I might make this year which is was so far off as I haven’t worked for most of this year due to illness.
    So he not only stripped me of all parental rights but has put me in a position living just above poverty… and I’m a nurse.
    Yesterday he ignored all my pleas and ignored his mistakes made in February for allowing my ex to abduct our children with the sole purpose of isolating them from me. This included all contact. All Justice Price had say was “Mr McColeman what would you like?”
    I walked away yesterday with no access once again because Justice Price said I couldn’t finance the visits. He actually told my boyfriend who was in the courtroom that he could finance the visits and do the 2 hour drive.
    He completely ignored the contempt motion, ignored the abduction, ignored that my ex came in February with false allegations that I proved in my paperwork if he felt like reading it, and my ex came in “Bad Faith” with absolutely no proof!
    Every parent has the right to see their children and he has taken mine away 3 times this year with absolutely no justifiable reason.
    This is a judge who abuses his judicial power! I have lost my children because of him and he completely over turned another judges order which was made because of my ex’s behavior and denial of access, as well as the alienation my ex has subjected our children too. He didn’t care.
    My ex walked out laughing yesterday as he gets away with whatever he wants.
    Mind you, my ex’s mother works within the Guelph Superior Court, directly with the judges and there is a huge conflict of interest. I have files that have been removed from the court file, forged court documents, biased judges and several judges there that all abuse their judicial duties and make their own rules to protect my ex. Except for Justice Mossip who changed the order because of my ex’s behavior.
    The Family Court System is a joke and my children have been victimized and the courthouse has vilified my right as a parent! Justice Price has had his hand in this 3 times just this year.

  9. The issues of Family Law stem back to the implementation of the 1997 Child Support Guidelines. Read http://fathersforlife.org/articles/report/formula.htm to discover how horribly wrong the whole child Support exercise started. No public feedback? Formula explained more than a year after implementation. It can be argued that the guidelines meet none of their stated goals. The only benefit from the perspective of the judges themselves is how quick and easy they are to use. The one-size-fits-all approach prevents the courts from having to scrutinize things such as income deductions on the part of the payor, income benefits on the part of the receiver and the actual costs of maintaining a home suitable for parenting children. Look to IOWA down south. They consider taxes, mandatory pension payments, medical plans, union dues etc ALL DEDUCTABLE from total income for Child Support purposes. Other forward thinking countries have actively opposed the Custody=Cash and Dollars for Days approach to child support. If your children stay overnight with you even twice per month then they ought to have their own bedrooms. Read http://www.canadacourtwatch.com/files/all/Effects_of_child_support_2008.pdf to see just how poor the support payor will become after the imposition of child support. The consequences to dead-broke dads can be catastrophic – loss of license, garnishee wages and even jail time courtesy of the Family Restructuring Office (FRO).
    This nightmare needs to end…

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