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Prepared self-reps make process more efficient: Daudlin

With an increasing number of people representing themselves in court, Toronto family lawyer Jennifer Daudlin says litigants need to be prepared when they go before the judge or risk facing lengthy delays and added costs.

“In family law, there is a huge increase in self-represented litigants in both levels of courts. The primary reason is cost,” Daudlin tells AdvocateDaily.com.

“Most people earn too much to qualify for a Legal Aid certificate in Ontario, but not enough to afford a lawyer.”

An article in Canadian Forum on Civil Justice suggests 60 to 70 per cent of litigants in family courts represent themselves.

Daudlin, a former staff duty counsel for Ontario Legal Aid, says her conservative estimate is that if there is contested litigation, the average family law case will take two years to resolve, which usually means time is being wasted somewhere.

“If the financial paperwork is not in order the first time you are in court, it's fairly certain that, the judge is going to give you at least one more shot to get it all together, she says.

“However, in some cases, people get multiple opportunities. Some judges are more lenient while others will threaten or order costs if it’s believed people are intentionally delaying.”

Daudlin, founder and principal of Daudlin Law, says the longer the process drags on, the more expensive and frustrating it becomes.

Self-represented litigants can often be overwhelmed, she says, but there are many online resources to help them work through the process as well as areas where the courts could help.

“A possible solution is when a litigant is provided with an appearance reminder or endorsement, they could also receive a page that explains briefly and in simple terms what a case conference is, which forms need to be completed for the next court date and the timelines for service and filing, along with website links, and where they can get more information in person,” Daudlin says.

Colour-coded handouts could also help a litigant wade through the complex system and volumes of paperwork that all looks the same to the untrained eye, she says.

“It’s in everyone’s interest to have legal advice before doing anything in the courts, but it’s obviously not in everyone’s financial means to hire a lawyer to represent them for the duration of their case," Daudlin says.

There are more options now than ever before for those seeking some help, she says.

“There is a real movement toward legal coaching and unbundling of services," Daudlin says.

"If you can’t retain a lawyer to work for you full time, you may be able to hire counsel to work on your file in the background, guiding you along the way. I offer that service in my practice and believe these types of offerings can help resolve issues in the courts a little quicker."

As well, Daudlin says advice counsel at the Family Law Information Centre (FLIC) offices, located in most family law courts in Ontario, provide at least 20 minutes of free summary legal advice to litigants and prospective litigants whether or not they qualify for Legal Aid.

Those who are self-represented can also ask court clerks what documents they need for their next court appearance, she says.

“Although the court and court staff are limited in the information they can provide litigants because they can’t be perceived to be biased or giving legal advice, information that is strictly procedural is readily available,” Daudlin says.

If a litigant, self-represented or represented by a lawyer, continues to be unprepared for court and is delaying the process, costs toward the other party’s legal fees can be imposed, she adds.

“Costs are often a way to discourage people from unnecessarily delaying an issue. But in my experience in family law, imposing costs isn’t usually done until further into the process, or in cases where both parties are represented by lawyers,” Daudlin says.

“As a litigant, whether you are self-represented or not, there is an expectation that you are going to move your case forward and not delay.”

She says it is in a litigant’s best interest to provide the court with as much paperwork and information as possible.

"With limited exceptions, a judge can only make an order based on the information they have on paper in front of them, which has been filed before the court date and shared, in advance, with the other party. They cannot rely on you coming to court and making declarations that aren’t substantiated or provided in writing,” Daudlin says.

“In the absence of facts that refute the other party’s claim, they often have limited discretion but to accept that the information the other party has provided to the courts is likely more accurate because they have nothing else to rely on.”

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