Self Representation in Family Court – Yikes

The Halls of Justice are supposedly accessible to everyone, even without legal representation. After representing myself on some issues that should be straightforward, I was overwhelmed by the cost, delays, unnecessary complexity, process, jargon and etiquette. As I’ve found out, the only reason for this is to discourage self representation and increase legal billings.

In Chief Judge Beverley’s address to Canadian Bar Association in 2006 that I mentioned earlier she referred not only to cost as a factor in relation to access to legal system but also the high level of self representation. To quote ” The judiciary of Canada is trying to cope with this epidemic of lack of representation”. Does this not tell you something is terribly wrong? That the expectation for an individual to have a say in court on a family matter is referred to as an epidemic. I think it’s time to find some political will to find an antidote for the cause of this epidemic and eradicate it.

From an Ontario publication: “A Guide to Procedures in Family Court ”.

It is strongly recommended that people who have cases in court retain lawyers to represent them in court.
Clients who represent themselves are responsible for informing themselves about the law and the court’s procedures. They will be held to the same standard as parties who have lawyers representing them.

• Not to seem naïve but “why does it need to be so complicated”?
• Why aren ’t laws or at least translations written so the intent can be understood without a lawyer?

Tax laws don’t seem to have this problem. I’ve been a director my condominium board and found that even the condominium act is more comprehensive and better written than “Family Law Act”. When Judge Speyer’s irrational order forced me into bankruptcy, I had no problem with the Bankruptcy Law or process. But then there is no incentive for the legal community once bankruptcy has been attained.

A number of times I’ve visited a self help centre for Family Court. There is lots of info such as Guides to applications, procedures in Family court, Motions for Temporary orders, Case management, continuing records etc. but nothing that says for example….How do you adjust support when one loses their job.
Each guide comes with a disclaimer:

“Many court procedures can be complicated and it is strongly recommended that you seek legal advice. This guide does not provide legal advice…. ”

!!!! Isn’t that the whole intent behind the “Self Help Centre”????

And if not complicated enough, the justice system makes it even more so.
In Ontario alone for example there are 3 different courts that deal with Family Law; Superior Court of Justice, Family Court of the Ontario Court of Justice and Family Court of the Superior Court of Justice.
Although the names sound similar their operation is quite different. For eight of my past 13 years I lived in Burlington which uses the “Superior Court of Justice ”. After eight years of court actions I moved 5 kms to Hamilton. Guess what, different court jurisdiction, “Family Court of the Superior Court of Justice”, with a completely separate processes and required documentation.

From preliminary experiences the Hamilton version has some minor improvements but I guess it also begs the question. Is it worthwhile to invest to improve a system which is totally out of touch with family needs in the first place?

In addition to all the costs I’ve mentioned the legal costs are the largest. To top it off, these costs provide “no” value and instead have the opposite effect of increasing conflict and lowering the standard of living for everyone in the family. How do you justify the fact that I need to represent myself in court because I don’t have the money for a lawyer then have to fight against a lawyer who takes me to court representing my ex whose fees I’m ordered to pay…. “Pure and Simple insanity”. And again these monies are not included in any support calculations so in addition to paying the legal fees in the first place I will have to pay child and spousal support on these costs as well. Any wonder court judges and lawyers are the number 1 cause of personal bankruptcies. Input rules and guidelines to calculations for child and spousal support are so deficient that the results are inexcusably inaccurate….

Remember the high school teachings of “Garbage in – Garbage out”. Here’s a perfect example. I suspect this is not by chance.

On June 30, 2005 I lost my job when the company I was working for restructured so I needed to go back to court to revise my child and spousal support. The last court judgment forced me into bankruptcy and even though bankrupt and jobless, I do not qualify for legal aid. So I need to represent myself.
Since my last court order, I’ve moved 5 kms. I am now within a different Court Jurisdiction ( Hamilton vs Halton) so I need to understand the new process.

Self Help Centre

I visit the self help centre. aka Family Law Information Centre (FLIC).  There are lots of pamphlets on applications, motions, financial statements, continuing records etc. There are none that tell me how to change my support payments.

Duty Counsel

I put my name down to see a duty counsel to make sure of the process. During the week I see a total of 3 different Duty Counsels. The problem is the order I need to vary was issued in the “Superior Court of Justice” and now I need to change it in the “Family Court of the Superior Court of Justice ”. I received 3 different answers.
You need to start a “new application”
You need a “new application and motion to vary”
You need a “motion to vary” in the court that originated the order.

After a brief conversation with the records clerk, the right answer seemed to be “motion to vary”.

Documentation:

I go back to the pamphlets to figure out what documentation is required. After reading the handouts, I think I’ve got it….This time went to the clerk the first time to confirm….

• Form 14, Notice of Motion
• Form 14A, Affidavit with various exhibits
• Previous court endorsements
• Form 13, Financial Statement
• Form 15, Change Information Form
• Form 8E, Summary of Cases (10 year history)
• Form 6 B, Serve documents and file Affidavit of Service

These forms need to be indexed and put into a “continuing record” with 3 copies (court file, served party, personal).

Service of documents and court filing

Once the “Continuing Record” is completed, it is reviewed with the records clerk who then provides a date for my ex ’s lawyer and myself to meet with the court clerk to schedule a “case conference”. There is a minimum of 30 days before this can be done but the first date available is Oct.6. (56 days). Remember this is simply to schedule a meeting with the court clerk to set up another meeting for the Case Conference.
With this date, I then serve the documents with the responding lawyer and return to the court to swear the “affidavit of service”.

Meeting with Court Clerk

In October 6, the respondent’s lawyer and myself travel to court, wait in the lobby (legal meter is running) and then go into the courtroom to schedule a date with the court clerk for the case conference. This takes 1 minute and the earliest date for the case conference is December 22 (75 days). Remember this date is only for the “case conference”. By now the documentation such as financial statements are out of date and will need to be updated as they are required to be current.

Cause:

It will be 6 months to get to the case conference, good thing I’m on the fast track, last time it took 2 ½ years.
In the meantime the Family Responsibility Office is threatening enforcement action against me because after 10 years of being up to date with support I am now behind because of the court process. It has taken 6 months to schedule a case conference yet the FRO after 2 months states that if I don’t pay up in 15 days they will begin enforcement action.

The Case Conference – what is it?

In theory the case conference is a meeting of the 2 parties to meet informally with a judge to see if resolution can be found before going to a court hearing where the judge decides.

Documentation required:

Update of previous documents such as Financial Statement as they need to be current.

• Form 17, Conference Notice
• Form 17A, A Case Conference Brief
• Form 13, Update of Financial Statement (30 days current)
• Form 14 A, An affidavit if there has been no change since last statement.
• Update Continuing Record
• Form 6 B, Serve documents and file Affidavit of Service
• Form 14C, file to confirm attendance at the conference….

At the case conference, the judge may think another conference is necessary and he or she can schedule another case conference, settlement conference or trial management conference. The process and preparation for these subsequent conferences are basically the same as above.

The stated intention of the case conference:

• To give procedural directions to the parties prior to the next step in the case
• Set a date for a motion and for the filing of materials for the motion
• Set a settlement conference date.
• Turn a case conference into a settlement conference and give a view as to the likely outcome of the case.
• Set a trial date.

My Experience…

I’ve been at 5 of these and they have been costly financially, emotionally and totally useless. The parties sit down, the lawyers state the parties can’t agree and it’s over….

I’ve recently taken a continuing education course at McMaster University called “Principled Negotiation and Conflict Resolution”, essentially dealing with ADR ( alternate dispute resolution). Is this not in the Osgoode Hall legal curriculum? Doesn’t seem like it.

Please keep in mind, this is only to vary an existing order. Imagine when issues such as child custody come to play….I’ve been at it for 13 years …. It just keeps going and going and going…..at what point will it stop.

AT 6 months

Ok, the day for the case conference is here. I’m walking into the door of the family court. The respondent’s lawyer is ahead of me and I wonder what I will say while we’re waiting in line at the security desk. For those who don’t know, every family court now has a security desk similar to the airport, 4 uniformed police (can you imagine the cost) the walk through scanner, empty your briefcase, pockets, wand to scan the belt buckle….you get the picture. Anyways the lawyer simply walks past the security though a separate line. What’s with that I asked the police? Why don’t lawyers go through the same process? Don’t know was the answer. I guess club members get priority passes. Anyways, does this not scream out that something is terribly wrong? That the institution taxpayers fund to help families, needs protection from the very people it is supposed to help.

Back to the court room…

I didn’t want to get derailed this time so I’ve prepared my overview carefully. Judge Lafreniere comes in, sits at the throne and the clerk introduces the parties. As the applicant, I go first. I ask the judge if I can present my overview without interruption and confirm that I have 30 minutes. I had initially scheduled 60 which is part of the process. Her answer is that she has a long list of other cases and only has 10 minutes total. And by the way we deal with the current issues only and I’m not here to dispense advice. I won’t even go into the details….this is a case conference to try to negotiate a settlement…. 10 minutes….what a joke. After 6 months of process you get 10 minutes. Chalk up number 4 case conference as another totally useless event. She schedules a continuation for Feb. 23 and orders that additional information be provided including a Factum. Oh by the way, see if you can guess the last question by the respondent’s lawyer…. If you guessed, “Your Honour, could I get an order for my costs? ”…. You win.

A surprise when I get Home

When I get home (what a coincidence), there’s a large envelope in the mail from the FRO. I’ve written to them previously that I am unemployed, bankrupt and am going through the court process to change my support order. The letter in the package says that if I don’t reconcile my arrears by Jan. 26, my driver’s license will be suspended. The next day I call the FRO. When I questioned their enforcement actions after sending my letter, the answer was “we only respond to court orders”. But I tell them I can’t get a court order because it’s taken me 6 months and counting to get one. Ah yes, the Ontario Justice System. The left hand doesn’t know what the right hand is doing….What a “Gong Show”. More on the FRO later but can anyone provide the rationale when someone who has lost their job, then finds a job, is garnished for 50% earnings for support, is going through court to get a support order changed, are in arrears caused by the court in the first place and then told they will lose their license unless they get a court order to suspend the suspension.

Month 8 – Case Conference – Take 2

Ok, Christmas is over, it’s Feb. 23, I now have a job but as I mentioned earlier, the process says the case must go on. New documents and updates have been prepared with the process previously described. My ex ’s lawyer and I spend 1 1/2 hours waiting (remember the meter is running) in the lobby until the previous case is finished and it’s our turn. We review the information previously requested and reference our positions with respect to support. As usual, nothing is accomplished and a motion hearing date is set for May 1, 2006.

Month 10 – Motion Hearing

Ok while trying to get going with my new job and fight off the Family Responsibility Office it’s time to get back to the file box(s). As a motion requires a different set of documents, I need to research, prepare, update others, file, copy, serve etc. etc. etc. and as previously ordered prepare a factum. The factum, by the way, is a document containing case law used to argue for or against a legal position based on historical decisions in the courts. The last time this took me 2 weeks of research, but recently a whole new business, Case Law research has emerged. So I outsource the research part of the factum (at considerable cost) to a third party. I then used their input to create my Factum. As it turns out the factum was never referred to so a complete waste of time, effort and $’s on both sides (another “best practice I presume”). At the case conference, my ex ’s lawyer presented a printout from a computer program used for new spousal support advisory guidelines. This software is available to lawyers only and costs almost $1,000. By the way the Spousal Support Advisory Guidelines are not legislated in law but somehow they are now used to set spousal support awards. To make a long story short I was able to get access to the program to complete my documentation. By the way, the user guide alone was 100 pages.

May 1 is the motion date and after 40 minutes, the judge has had enough and says he will have his decision next week. I’ve already covered the details of Judge Czutrin’s order in the previous “irrational orders” section so I won’t repeat.

Hang in – we’re almost there….

The judge delivered his endorsement on May 9, but he made a number of mistakes so another court hearing was set up and convened on May 18 to review the order and make corrections. Subsequent to this hearing a corrected endorsement was issued.

Don’t go – there’s more ….

Now that the motion hearing is completed there is another hearing required. Just as a reminder, this all started almost a year ago to the day when I lost my job and needed to adjust support. After a year of useless court excursions I am now at the point where I have to again go to court for a costs hearing. A court that according to their own reports is so overburdened that they are near collapse. This hearing is to defend against having to pay court costs to my ex ’s lawyer who challenged my need to adjust child and spousal support when I lost my job. Why is he even involved? And then they wonder why there so many are deadbeats when the court itself creates them either directly or by making the process so complex, convoluted, expensive and stressful that by this time most have thrown in the towel and given up. Being classified as a deadbeat is the least of the problem when trying survive and support their kids while being kicked around by the courts and the FRO. Although statistics are not kept, I wonder how many suicides are instigated by the courts. I know of a number myself and some are quoted in this book.

Cost Hearing

May 18 arrives….and the cost hearing is here ….yada yada yada the documentation has been prepared etc. By the way, since I’ve represented myself, I am not even permitted or to claim for my costs as this is only available to lawyers. I do so anyway and base my time on amounts I would use when doing consulting work. But I guess my time is of no value so it’s not considered. This session lasts almost as long as the motion hearing. The hearing is basically what I referred to as “The Price is Right” session. After review of motion docs, letters to settle etc., the judge decides who was closest to his eventual order….”and the winner is” ….not me….so I pay.

The End ….for now ….

My job is that of a Project Manager. No projects, no job and this whole cycle may need to be repeated again at any time. I will not….call me a deadbeat, take away my licence and passport. Throw me in jail if you wish….this is pure insanity….I’ve had it….