The cost of being self-represented
By Cathryn Paul
The number of self-represented litigants in family cases in Ontario is growing. Many people who are not represented by lawyers cite the high costs of having lawyers. However, there are costs to not having lawyers as well.
This week, the Court of Appeal for Ontario released its decision in Wodzynski v. Wodzynski (2012 ONCA 272). That decision is one that any person considering representing himself or herself at trial should read and consider.
In this case, the wife represented herself at trial. She was, however, represented on appeal.
The wife sought to appeal the decision of the trial judge based on the conduct of the trial.
She had numerous objections to the trial process.
• She stated that the judge should have asked her if she wanted an adjournment before the trial started, as she was self-represented. However, she did not ask for an adjournment.
• She stated that the court should not have accepted document books provided by the husband at trial. However, she was asked at trial if she objected, and she said that she did not.
• She stated that the trial judge allowed her presentation of her evidence to become “nearly incomprehensible”, however, she did not say what he should have done to change her presentation of the evidence.
• She stated that the trial judge did not explain what was involved in making final submissions in advance. However, he did so prior to the lunch break, and she gave her submissions after the lunch break. There is no indication that she asked for more time.
• She stated that the judge erred in influencing what evidence she called. However, the Court of Appeal found that he was assisting her in focusing her evidence on the relevant points.
The Court of Appeal found that the objections about the judge’s conduct of the trial were without merit, and that throughout the trial, the judge tried to help the wife as needed and ensure that the trial was conducted in a fair manner.
There is no doubt that a trial is a confusing and overwhelming experience for a self-represented litigant. The stakes are high and the process is foreign. As a person who will be directly affected by the outcome and who has been involved in the issues at trial, the self-represented litigant is at a distinct disadvantage.
Any judge who presides over a case with a self-represented litigant walks a very fine line. He or she must maintain respect for the legal process, and not favour (or appear to favour) one litigant over the other. When one party is self-represented and the other is represented by a lawyer, there is an inherent imbalance, and the judge is open to criticism for either helping the self-represented party too much, or not enough.
In Ontario, a party may represent himself or herself in family cases. However, he or she is still required to follow the Family Law Rules, and adhere to the rules of evidence and court process. While the court may provide some assistance as to the process, this varies according to the judge, and the judge must be balanced between the litigants. Each party must come to court prepared, whether represented by lawyers or self-represented. He or she must accept the consequences of the decision to be represented or not. As shown here, a self-represented litigant cannot count on hiring a lawyer to successfully appeal an unfavourable trial decision.
The bottom line is that there are always costs. It is very important to consider the unseen costs, such as the cost of an adverse decision, cost of appeal, cost of time to prepare and learn court process, and emotional cost from added stress before deciding to represent yourself in family court.