From the moment I created my first public legal education family law website, BC Family Law Resource, in 2001, I have been contacted by people from across Canada, mostly in British Columbia, dealing with difficult family law issues on their own. Although a study of the users of the website’s current incarnation, JP Boyd on Family Law, found that a significant share of users are legal professionals, it was litigants without counsel and people simply browsing for legal information who I originally set out to help.
In the years that passed, hundreds, maybe thousands, of people have gotten in touch with me for legal information about their family law disputes. Unless I’m drowning in deadlines, I always took – and continue to take – the time to talk or write to them and shine some light into the murky depths of family law.
Most of these folks have been glad to have my time and left our conversations with a better sense of the road ahead. A notable few, however, were beyond my capacity to help and not only resisted the information I gave them but were upset, if not enraged, that I had failed to support their vision of the future and refused to tell them what they wanted to hear. By and large, these people felt that they had been unfairly persecuted or victimized, by the system or by their former partner, they held unshakable but highly improbable goals, or they saw themselves as among the vanguard of a marginalized segment of society pushing for much-needed reform. Some were fixated on remedying historical wrongs, long out of limitation and appeal periods, and had exhausted every conceivable recourse, including complaints to the law society and to the judicial council. Others had so conflated their children’s interests with their own that they could no longer assess the magnitude and significance of the events in their lives, and perceived every slight, such as a minor delay in dropping off the children, as an injustice of the highest order and an existential threat to their children’s wellbeing.
As private counsel blessed with an abundant stream of referrals, I had the discretion to choose my clients. I would usually decline to work with individuals who had more than three previous lawyers, individuals who were combative and unlikely to follow the courses of action I recommended, individuals with unrealistic expectations I could not reshape and individuals expressing a degree of conflict markedly out of proportion with the events they described. It is not unreasonable, I think, that I should select clients who posed less of a risk to my reputation, my insurance premiums or my standing with the law society.
However, Russell Alexander posted some comments yesterday on the recent decision in Kirby v Kirby that has given me pause for thought. As Alexander describes things, this case required an almost inconceivable 17 years plus a 10-day trial to get to a final order, due in part to the wife’s lack of representation. The chickens ultimately came home to roost on the question of costs. Here’s Alexander’s summary:
The court then examined the spouses’ respective conduct during the course of the litigation. In fairness, it noted that both spouses were responsible for the fact that the file languished for years and years. But it credited the husband for making greater efforts to settle without a trial, for being better prepared, and for behaving “much more admirably during trial.”
On the other hand, the wife’s conduct was unreasonable: she made late-breaking “wild allegations” of being raped by her husband, and failed to comply with prior orders. Even her submission on costs was filed late, after being granted an extension, and it did not comply with the court’s express directions on its length. (The court read it nonetheless, as a courtesy.)
As the court summed it up: “she single-handedly caused the hearing to be significantly longer than it should have been” and her conduct in the past two years or so was “worthy of serious condemnation by this Court.”
It concluded that the case “ought to have never went to trial,” and [held] that “awarding to [the husband] every cent of the $190,438.63 is in the cards.”
However, the court noted that the wife is “indeed, mentally ill,” a fact confirmed by the family physician’s evidence, and surmised that some of her unreasonableness is due to her psychological issues. Concluding that this militated against awarding the husband his full costs, the court reduced the total to an even $150,000, all-in. Those costs were to be immediately deducted from the wife’s share of the proceeds of the matrimonial home.
I won’t speculate on what was driving the wife – perhaps her family doctor was right, perhaps not – but in response to a brief reference to Alexander’s article I posted on Twitter, one person commented:
If [the wife] doesn’t have counsel because her behaviour causes counsel to not want to represent her, is it actually an access to justice issue, in the sense that this term is commonly understood?
This is an interesting point, and I think the answer is yes.
As the research on litigants without counsel points out, while the majority of this population don’t have lawyers because they can’t afford the legal fees, some don’t retain lawyers because they believe they’ll do a better job or get a better result if they do it themselves, and others don’t retain lawyers because they can’t find one who will agree to be hired.
Our court system is a public good, like our health care system and our K to 12 education system, and the only prerequisite that must be met to access it is residence in Canada or involvement in a legal dispute with a “real and substantial connection” to a jurisdiction in Canada. However, the system’s roots in the common law and adversarial tradition have resulted in a complexity of principle and process that is deeply intimidating to those who are not legally trained; consider the mind-boggling length of most superior court rules, the number of pages in most Supreme Court of Canada family law judgments, the inaccessible language used in most family law statutes, or the disorganized state of the case law that must be read to understand and apply those statutes. Having a lawyer is often essential to piecing these bits and pieces together and successfully navigating a labyrinthine system to prosecute one’s claim.
I now wonder about those people I turned away in my former career as a representational advocate. (Now that I work primarily as a family law arbitrator and mediator, I no longer feel this conundrum quite as sharply.) Although my decision to not represent those individuals was made for rational albeit selfish reasons, they nonetheless left my office without counsel, and were likely destined to a parade of initial consultations in their efforts to hire someone else.
Is this an access to justice issue? Well, yes, it is. This difficult segment of the litigating population is uniquely vulnerable, especially when the challenging nature of their temperaments are buttressed by personality disorders and other mental illnesses, and are especially in need of representation if justice is to be done. Also, let us not forget the financial and emotional impact such individuals have on those on the receiving end of their wrath and indignation, or the administrative burden their cases typically impose on the courts. It seems to me that all three players – the intransigent litigant, those whom they are suing and the court system managing their claims – would benefit enormously if such litigants had counsel. (After all, the job of counsel is not to supply unthinking obedience to clients’ instructions, but to provide a cogent analysis of the pros and cons associated with the client’s instructions and suggestions of alternative, better courses of action.) Perhaps with counsel on both sides, Kirby would have concluded in two years rather than 17, after a five- rather than 10-day trial, and at a cost to the husband of $19,000 rather than $190,000.
However, this category of party is the category for whom the frivolous-and-vexatious litigant provisions of the courts’ enabling legislation were designed, not that I am suggesting that Ms Kirby falls into this category. These individuals are seen as troublesome irritants, and are precisely the sort of party for whom legal aid funding will be denied. Why would we expend the public purse funding the prosecution of questionable claims doomed to fail? And yet, the financial, emotional and administrative toll taken by unrepresented litigants pursuing such claims is likely exponentially greater than the cost of providing them with lawyers to manage their migration through the system.
Another idea might be to fund mental health support through legal aid where litigants are able to retain counsel privately. That sort assistance might help lawyers and clients negotiate instructions and develop strategy, help clients appreciate and understand legal advice they don’t want to hear, and help lawyers better manage the overall conduct of their clients’ claims. It also might encourage lawyers, who are naturally allergic to anything posing a risk of complaints, to make the leap of faith required to represent challenging individuals.
It seems to me that some way must be found to provide difficult litigants with counsel, with mental health support, or with both. They are equally entitled to access justice as anyone else, and not providing them with assistance has repercussions that extend far beyond the success or failure of a particular claim.