Self-represented family law
litigants pose challenges
[2009] O.J. No. 2906. The wife
appealed the trial judgment
dealing with the issue of prop-
erty division. The husband had
been represented by a lawyer
throughout the lengthy and
acrimonious matrimonial pro-
ceedings but, three weeks
before trial, he discharged his
lawyer and represented himself
at trial. The wife was repre-
sented by two lawyers at trial.
The wife alleged that the trial
judge interfered with the trial
process in an unreasonable and
unfair manner.
There is an epidemic of self-represented litigants in family
court.
In family courts throughout
Canada, judges are faced with
cases every day where spouses
are representing themselves.
PETER BONO FOR THE LAWYERS WEEKLY
Combine that with the
high stakes, high emotions and a winner-loser
mentality, and it is understandable that family
court judges are often
criticized and their decisions are even appealed
by angry litigants.
This very issue was
considered by a three-judge panel of the
STEVEN
BENMOR
The Ontario Divisional Court allowed the
appeal and granted the
wife a new trial. However, in so doing, the
appeal court carefully
examined the epidemic of
self-represented litigants
and the role of family
court judges.
See Self Page 13
Ontario Divisional Court in
Cicciarella v. Cicciarella,
The appeal judges in
Cicciarella made the following comments:
n;The increase in the number
of litigants who appear without
legal representation can pose
special challenges for busy trial
judges;
n;A trial judge must exercise
restraint and maintain impartiality so as to act within the
scope of his or her neutral role;
The voice of the
child in family court
It is a time of change in
family law. The voice of the
child is finally being elevated to
its rightful place as an essential
aspect of any custody determination. These children need lawyers, and lawyers need the specialized training required to
handle these cases.
Although children are the
focus of any custody dispute,
their views and preferences
have traditionally been a secondary consideration, if not
ignored completely. Absent an
assessment, or some independent evidence, the interests of
their parents have taken precedence, which may or may not
be synonymous with the child’s
best interest. Thankfully, that
focus is now changing.
Custody law mandates that
the merits of a case be determined through the lens of the
best interest of the child. There
are very few decisions with a
more fundamental and lasting
impact than a custody determination. Since a custody decision will determine the course
of the child’s life in many ways,
one would expect that the child’s
evidence would always be before
the court. However, research by
Semple indicates that children’s
evidence in any form is only
before the court in 45 per cent
JENNIFER
SHUBER
of reported cases (The Silent
Child: A Quantitative Analysis
of Children’s Evidence in Canadian Custody and Access Cases
(2010) 29 CFLQ 7).
Although the acceptance of a
role for child’s counsel in cus-
tody matters is relatively new,
its roots are decades old. The
1974 Canadian Law Reform
Commission recommended
independent representation for
children where their rights were
affected by a court proceeding.
In 1991 Canada ratified the
United Nations Convention on
the Rights of the Child. Article
12 reads as follows:
“1. States Parties shall assure
to the child who is capable of
forming his or her own views
the right to express those views
freely in all matters affecting
the child, the views of the child
being given due weight in
accordance with the age and
maturity of the child.
“ 2. For this purpose, the child
shall in particular be provided
the opportunity to be heard in
any judicial and administrative
proceedings affecting the child,
either directly, or through a rep-
resentative or an appropriate
body, in a manner consistent
with the procedural rules of
national law.”
Despite its legislative and
judicial foundation, such rep-
resentation has been a long
time coming. Moreover, the role
of child’s counsel remains
ambiguous. Child’s counsel
often struggle with the child’s
instructions if, in counsel’s view,
those instructions conflict with
best interest.
