August 17, 2022

Things to know before representing yourself in court

When you decide to represent yourself in court, think of these things first. It will be difficult, but you can get help.

Brace yourself for difficulty

To put it bluntly, you should expect to not enjoy the process.

Unless you happen to be a lawyer to begin with and are much more familiar with the process, otherwise, the process is confusing to say the least. If you prepare yourself for that and know there are going to be twists and turns that you did not expect, then you will manage it all a bit better. Even if you cannot afford a lawyer, our recommendation is to get as much legal help as you can. You may even qualify for legal aid. Their website can give you details on whether you qualify.

Get Whatever Legal Help You Can Afford

If Legal aid is not an available option for you, get the legal help you can afford.

Lawyers are now able to provide small little chunks of legal help. No full retainer is needed. This type of legal service is known by a number of names, such as: limited scope services, unbundled legal services, or fee for service only.

You can hire a lawyer to just do a little part of your case. You keep control of your whole case. You can get small pieces of things done to help you out, whether that be help understanding forms, filling in forms, what to do after the forms are done, to even knowing what to say in court.

That limited help is available. We can give you an opinion on your case, we can give you case law that is relevant to your case and help with research, coach you through what to say to a judge or even attend court and argue your case only on the day of a hearing – still leaving you in charge of your case. The Ontario Limited Scope Services Project website lists all the lawyers in Ontario who have registered with them saying that they are willing to offer unbundled services. Just because lawyers are allowed to do this does not mean every lawyer will want to. If you already have a lawyer, you can discuss with them leaving a “full representation” retainer and moving to unbundled or limited-scope services if you are considering representing yourself.

You do not get special treatment if you represent yourself

Just because you choose to represent yourself does not give you any special treatment from a court. A family court Judge will expect you to have read the Rules and to follow the Rules.

You face the same deadlines that the lawyers face to get the correct documents filed under those Rules. You are expected to know the basics of the law. You will need to read up on the area of law you are having a dispute around (example: child support). This goes back to the difficulty point we raised earlier as you are not even familiar with the rules and the deadlines and the laws, but you had better read them and know them.

If you miss deadlines, the court can strike your case. If you start a case and argue against a law that is clear (meaning you are swimming upstream on that issue), you will lose and then likely end up paying the legal bill of the other party. Family court is a Loser Pays system. It is called Costs. That means if you take a position the Judge decides is not reasonable, you will pay your spouse’s legal bills. This can be in the 10’s of thousands of dollars, so you want to be very careful about the position you take on an issue and the steps you take. A misstep in this process can be particularly unpleasant. Some people who lose can even end up paying over $100,000 in legal bills for their spouse’s lawyer. You want to tread carefully.

A Judge is not allowed to help you and you are not allowed to ask a Judge for legal advice. The court staff will not give you legal advice. They may point you in the direction of the forms you need, but they will not help you fill them in. Only a lawyer can give you legal advice.

Read, Read, Read

There are key things you must become familiar with. One of those is the Family Law Rules. Whether you are in Ontario or another common law province, every province has their own Family Law Rules. In Ontario, those rules are available online. They explain the basics of what forms you must fill out to start a case, where to start a case, who needs to be on the other side and what steps get taken. The Rules contain all the time lines on the documents that you must file before specific events in the courtroom. We recommend that you become very familiar with the Family Law Rules.

Courts in different counties may also have their own additional rules. These are called local practice directions. There may be slight deviations in the way certain steps are taken in the process depending upon which county you are in. Sometimes it differs even if you are on one side of the street from another in Toronto.

You can contact your local court who will be able to tell you where to find your own local practice directions. Then you need to read the law in relation to the area you are asking the court to decide. If for example, that is child support, then read up on the Child Support Guidelines. One key point to understand is that courts start with the letter of the law – being the written pieces of legislation created by governments, such as the Canadian Divorce Act and the Ontario Family Law Act, but then case law steps in. Case law is “judge-made law”. Because the letter of the law can be unclear, courts are forced to try and interpret what is a reasonable way of looking at an issue, so judge after judge looks at an issue and makes a decision. When a Superior Court judge decides on an issue, a party can appeal it on a legal point and then the Court of Appeal looks at the case. They then make decisions which carry more weight when you are looking at that particular point that they decided. You cannot stop at the written legislation, you must know the case law in your situation.

In short, you need to become familiar with the Rules, the laws, the Guidelines and the case law which relate to the issue you are asking a judge to decide. That entails a lot of reading. And re-reading. As always, if you want a quick summary of laws that apply to your issue, or help with forms or even suggestions on how to approach an issue, we are able to help. On an unbundled, pay-as-you-go, limited scope basis.

You keep control of your case.

We just help out in the background. Just give us a call.

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