Representing yourself in court is popular but costly and risky

When Caroline Wilson and her husband separated six years ago in British Columbia, she thought getting divorced would be as simple as getting married. But after she spent $15,000 in legal fees in one year, she knew there had to be another way.

"I decided to represent myself in court because I was out of options," she said in an interview with CBC News.

That sentiment has been echoed in civil and family courts across the country as more people file their own actions and represent themselves.

There is no consistently reported data on self-represented litigants in Canada's courts, although some provinces have started keeping numbers for individual court appearances. The numbers of self-represented litigants in criminal cases, though not as high, are still on the increase.

In 2012 the Nova Scotia Department of Justice reviewed its case files and found that 85 per cent of the litigants in Halifax's family division that year didn't have lawyers.

In Alberta, the number of self-represented litigants in divorce and family court has increased 121 per cent since 2006.

Rob Harvie, a divorce lawyer in Lethbridge, Alta., for 30 years describes a typical self-represented litigant in a courtroom as someone who displays high levels of anxiety and fear.

"It is misery. I've seen it. I have had people hire me on a limited-scope basis just to coach them to represent themselves. And I've talked to them later and it is misery, you know. Lawyers do add value." 

Justice Victoria Gray, who has sat on the B.C. Supreme court for 14 years, has found one of her challenges has been to read the information filed by self-represented litigants.

"I understand that people unfamiliar with a court process would think: 'I don't know what to tell the judge so I'll just tell them everything,' and so the role as a judge can seem like looking for a needle in a haystack."

In 2013, she took an eight-month sabbatical to circulate a questionnaire to about 100 Supreme Court of B.C. judges and 30 other court officials. The overwhelming response was that self-represented litigants were filing large volumes of disorganized and irrelevant information.

"Self-represented litigants are giving us a lot of information we don't need, and it's costing everybody time and money." 

When Julie Macfarlane, a University of Windsor law professor, started researching the growing phenomenon of self-represented litigants four years ago, she discovered that more than half of the people whose cases she sampled started with a lawyer but ran out of money.

"People had paid amounts from $10,000, $15,000 $20,000, all the way up to $100,000, and at $100,000, most of us can't afford to go on paying. And so they felt obliged to continue on their own."

Macfarlane formed the National Self-Represented Litigants Project in the hope that people handling their own family and civil cases could share their experiences and start to change the negative perceptions that some lawyers and judges have of them. 

"Self-represented litigants are powerless, but if we are going to respond to their enormous feeling of frustration, we need to start sharing the power, we need to start thinking about ways that judges and lawyers will do things differently."

Macfarlane is particularly concerned about the number of such cases that are being thrown out of court through summary judgments requested by opposing lawyers and granted by judges. In the last 10 years, across the country, summary judgments against self-represented litigants increased 800 per cent. 

Another way opposing counsel can get a lawsuit thrown out is called a motion to strike.

Shortly after retiring, Kevin Hope and his wife Fay bought land in Saskatchewan to develop into housing lots, but their investment soon became mired in litigation.

The Hopes represented themselves in related civil cases against a rural municipality and various municipal officials. Ultimately many of their arguments were struck.

A few months later, the Hopes launched an appeal against those decisions.

Fay Hope, under a great deal of stress, became ill and died. Kevin Hope can't blame the litigation directly for her death, but now he looks back at their six years of litigation with regret.

"If I could go back six years and start over, I would have nothing to do with litigation. No amount of money is worth what I've gone through and losing my wife, and here I am; I am no closer to justice."

Caroline Wilson has been more fortunate. She won her case with the help of B.C. lawyer Denice Barrie, who coached and advised her. It cost Wilson less than a quarter of what she would have paid a lawyer to fully represent her.

Barrie has written a self-help book, Journey to Justice: A Practical Guide to Effectively Representing Yourself in Court.

She believes a paradigm shift is taking place in the justice system.

"As much as lawyers or maybe even some judges would just like them to go away, it's not happening.  Self-represented litigants are here to stay."