Issues of Self-Representation in a Landmark Decision: Reflecting on Ahluwalia v. Ahluwalia

The Supreme Court of Canada’s decision in Ahluwalia v. Ahluwalia was released on May 15^th to much press and discussion. For many, it was a relief that a significant and precedent-setting case sought to tackle a pervasive and insidious social problem: intimate partner violence. There will no doubt be much commentary on the substantive content of the case, the scope of the tort of intimate partner violence, the manner of its proof in family law cases, and the implications for individual litigants going forward.

However, there is another thread weaving through the fabric of this case in its journey from the Ontario Superior Court of Justice to the Supreme Court of Canada. This thread engages several interwoven themes that include the prevalence of self-represented litigants (SRLs) in family law, the power-dynamic often at play in family litigation (particularly in cases involving family violence), and the role of lawyers and trial judges.

In Ahluwalia, Kuldeep Ahluwalia originally represented herself. In the course of so doing, she claimed damages for the abuse and violence perpetrated against her by her former spouse. This is, in itself, an inordinate undertaking. At the trial level, there was one lawyer involved – her ex-spouse’s counsel. When her ex-spouse appealed to the Ontario Court of Appeal, there were three lawyers now representing her ex-husband, and seven lawyers representing Kuldeep; at this stage there were also five lawyers representing a variety of intervenors, for a total of 15 lawyers.

As this matter progressed to the Supreme Court of Canada, Kuldeep Ahluwalia (now the Appellant) had five lawyers, while the respondent had four. In addition, there were thirty-nine lawyers representing a host of intervenors from across the country, for a total of forty-eight lawyers. This headcount is by no means to suggest that there were too many lawyers, however it does raise a very difficult question: why is it that Ms. Ahluwalia had no lawyers when she really needed it at the beginning of her case, and an abundance of lawyers at the later stages?

Again, to contextualize her case, originally she was a self-represented litigant facing an ex-spouse who had subjected her to years of family violence and coercive control – and he had legal counsel. The power dynamic here is profound. And, while I understand quite clearly the complexity of appellate litigation and the need for experienced litigation counsel who are able to make the submissions necessary to be successful in such a case as this, I also cannot help wondering – how many other Kuldeep Ahluwalias could use counsel much earlier in the game, and what might be lost by them not having this support?

SRLs in family law face significant challenges, both legal and extra-legal, for which there are a dearth of supports. This is often made more pronounced when there is a self-represented litigant facing a represented party who has subjected them to years of violence and control. The consequence of this phenomenon includes re-traumatization, negative outcomes impacting families, including children, and financial impoverishment. Moreover, as is now evident with the jurisprudential hindsight offered by Ahluwalia, there is the potential loss of important contributions to the evolution of the common law. This last point forces us to reflect: what other issues raised by SRLs may fall through the legal cracks?

A related theme in this case is the role of the judge. In the case of Ahluwalia, there were a variety of judges involved, from Justice Mandhane at the Ontario Superior Court, and Justice Benotto at the Ontario Court of Appeal, to Justices Kasirer, Karakatsanis, Jamal, and Rowe at the Supreme Court. While it is beyond the scope of this discussion to touch on all of the judges’ impacts, I will draw attention to three judges who in turn highlight particular issues in access to justice.

To begin with, Justice Mandhane took the time to understand an SRL’s claims in a broader social context. While Ms. Ahluwalia’s pleadings may have failed to signal the introduction of a novel tort that might in other cases have been clearly and explicitly articulated by legal representation, Justice Mandhane did the work to understand and engage with Ms. Ahluwalia’s claims and the facts that underscored them. This is, in itself, noteworthy, given again the challenges SRLs often face in articulating and presenting their cases.

However, at the Supreme Court, Justice Rowe expressed great concern about Justice Mandhane’s efforts. He suggested that she had, in undertaking this work, entered, “into the arena” (14:51 of the SCC webcast). For him, the consequence was that Justice Mandhane engaged in judicial legislation that served to undermine the role of the judge in the adversarial process. While I understand Justice Rowe’s consternation respecting a continued commitment to the adversarial process (it is the system we have), and the role of the judge within that process, there are two concerns respecting his consternation.

First, my understanding is that Justice Mandhane did request further submissions from the parties respecting the development of the novel tort of family violence before completing her decision. Thus, even where there is a legally unsophisticated self-represented party who had been subject to years of family violence by a legally represented ex-spouse, Justice Mandhane remained committed to the tenets of the adversarial process. Second, Justice Rowe’s comments reflect a continued disconnect between the assumptions made about the operation of the adversarial system, and the practical realities on the ground. SCC counsel for Ms. Ahluwalia reminded Justice Rowe of these realities when she suggested that approximately 40% of family law cases involve a self-represented party. Thus, what Justice Mandhane did was identify and amplify the SRLs’ case. Ms. Ahluwalia’s counsel went on to rhetorically ask what a judge is to do in such situations, but justice. In light of all else that this case represents, this is not unimportant, because it signals a continued disconnect between what our adversarial system intends, and what is happening in individual courtrooms across the country. It also signals a tension respecting what we ought to do about this disconnect. Presumably Justice Mandhane and Justice Rowe see the answer to this question differently.

However, there is also a third judge whose decision is thematically connected to this particular discussion on access to justice. In her concurring decision, Justice Karakatsanis raises a specific access to justice concern, recognizing, of course, that other judges also considered the impact of access to justice. Specifically, she expressly links the ideas of self-representation in the family law context, access to justice, and the corresponding need to develop ‘one-stop shopping’ law that reduces complexity and increases litigation efficiency. She continues to identify the need for law to move beyond a patchwork of torts to a single tort of intimate partner violence that is reflective of the practical realities of family litigation: namely, that victims of intimate partner violence need to be able to seek redress for the harms they suffered, and that a significant number of these individuals will travel this road without legal representation.

Requiring SRLs who are also victims of violence to navigate multiple torts with varying legal tests and evidential requirements does not promote access to justice. In fact, it hinders it. By contrast, one-stop shopping makes sense, when it is acknowledged that a significant proportion of this particular group of litigants will have very few legal resources. Thus, Justice Karakatsanis’ concurring decision contextualizes the vulnerabilities associated with self-representation in family law, the practicalities facing SRLs, and the connection to the broader development of law that is consistent with promoting access to justice. However, it also signals a broader need to think of the development of law in terms of who needs to avail themselves of its protection and support and how they might do so. While Ahulwalia is a good start, such thinking ought to extend beyond the development of one tort.

Where does this leave us?

The substantive law developed in Ahluwalia will likely be far-reaching for family litigants. But it is also important that, as the dust settles on the tort of intimate partner violence, we do not lose sight of the access to justice issues raised in this appeal. First and foremost, there is the incredibly challenging position of family SRLs who are also victims of violence, the majority of whom continue to navigate the system without a single lawyer, let alone teams of lawyers. We need to think about these litigants’ needs both in terms of their individual cases, and the implications for the development of law more broadly.

Second is the need to continue to confront the disconnect between what we think the adversarial system is or ought to be doing, and what the experiences of many litigants actually are within that system. If we are, as counsel for Ms. Ahluwalia suggests, to do justice, it is imperative that we confront the realities of self-representation, the stigmatization of SRLs, and the ways in which much law remains inaccessible to the very people most in need of its protection. This is a continuing and pressing responsibility for all participants in the legal process.