JustFacts

Self-Represented Litigants in Family Law

This fact sheet is based predominantly on publicly available data from Canadian academics and organizations focused on family law research. It includes data collected after 2010.^{Footnote 1}

There is not just one "type" of person who self-represents

Self-represent litigants (SRLs) are reported to come from all income and education levels and may have differing motivations^{Footnote 2}. Studies indicate that individuals’ motivations for not hiring counsel can be complex and multifaceted. These include feeling that they cannot afford a lawyer or do not qualify for assistance (this is the most prevalent motivation), not being able to find a lawyer, being unhappy with prior experiences, a lack of trust, and, for a few, a belief that they can do it themselves.^{Footnote 3} Overall, SRLs report their experience to be anxiety-producing and uncertain.^{Footnote 4}

The number of SRLs is increasing

Several Canadian studies have noted increases in self-represent litigants (SRLs) over the last two decades and particularly in the last five years - as reported by court staff, judges, lawyers, other family justice service (FJS) professionals, and indicated by court data.^{Footnote 5} The Justice Canada Survey of Family Courts^{Footnote 6} supports this conclusion: in the last 12-15 years, an increasing number of divorcing parents did not have representation when resolving child-related issues such as custody, access and child support.

Based on the limited provincial/territorial statistics reported in 2012, it is estimated that between 40% and 57% of parties are self-represented when they appear in court for family law issues. At the time the case is opened (i.e., at filing) even more are unrepresented; court-reported estimates range from 64% to 74%.^{Footnote 7} Surveys of judges, lawyers and other FJS professionals indicate that they believe the number of SRLs has increased over the last five years, estimating that between 50% and 80% of parties to civil/family actions are self-represented.^{Footnote 8}

SRLs have difficulty navigating the Family Justice System and require more court resources

Although there have been many references to the pressures that SRLs put on the family justice system and increased costs for the parties themselves, there are no quantitative data that measure this cost. However, court staff report that they deal with many SRLs (2-3 per day) and that dealing with SRLs takes a significant amount of time (2-3 hours per case). Cases with SRLs may also result in repeated contact, likely meaning more than two or three hours of time.^{Footnote 9} Lawyers and judges report that SRLs take up more court time, are less likely to settle, and that when one party is represented, the legal costs for that party increase.^{Footnote 10Footnote viii} The SRLs report difficulty understanding the rules and procedures of filing court documents as well as hearings and trials, leading to an increased need for assistance, repeated returns to court and repeated document filing.^{Footnote 11}

Family law cases often require significant court time, representing fifty percent of civil court events. When custody, access and child support are at issue, family cases take more time and court appearances.^{Footnote 12} Many judges and lawyers report that SRLs fare worse in court than those with representation, despite the extra time and assistance provided to them.^{Footnote 13}

SRLs may have unrealistic expectations for their court outcomes

Judges and lawyers indicate that for the most part, SRLs have unrealistically high expectations of the outcomes they are likely to achieve. These falsely optimistic expectations may be why SRLs are more likely to go to trial than settle their disputes.^{Footnote 14}