More people are using the family court system without a lawyer creating serious problems for litigants and their children, as well as for the family justice system, according to a study co-authored by a Queen’s University law professor.
The study – the first of its kind in Canada – surveyed 325 family lawyers, and found that in more than a quarter of their family cases the other side had no lawyer at all, and in another quarter there was no lawyer for part of the case.
“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 Professor Nick Bala.
Thirty seven per cent of respondents indicated that they had more such cases in the previous five years than in the past, and 44 per cent reported more cases.
The reasons why a person doesn’t have a lawyer are complex. According to respondents to the survey, they feel not being able to afford an attorney is the primary one reason. Other reasons include litigants who think they can do a better job than a lawyer, and litigants who want a chance to directly confront a former partner in court.
The family lawyers expressed concern about increased costs for their clients and the justice system when the other party is unrepresented. They also recognize that those without lawyers often have worse outcomes, a particular concern in cases where victims of family violence who do not have a lawyer.
“Bar associations and governments are certainly aware of the problems created by lack of legal representation for family litigants, and ultimately their children. But present fiscal realities make these difficult issues to address,” says Professor Bala. “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."
The study is co-authored by Rachel Birnbaum, an associate professor of social work at the University of Western Ontario. The results of the study, supported by a grant from the Social Sciences and Humanities Research Council, will be published in the upcoming issue of Lawyers Weekly.