Extra costs are hard to avoid when the opposing party has no legal representation, Pickering family lawyer Angela Princewill tells AdvocateDaily.com.
According to Justice Canada, provincial statistics suggest that somewhere between 64 and 74 per cent of parties are unrepresented at the time a family law application or action is filed with the court. That number falls slightly, to between 40 and 57 per cent, by the time they make an appearance in court.
“It comes up more often than I would like,” says Princewill, principal of AP Lawyers. “We try to be mindful of costs, but ultimately these things end up making it more expensive for your client.”
Although it may seem counter-intuitive to some, she says having legal representation on both sides is likely to reduce the conflict in a file due to a shared knowledge of the law and common professional courtesies that are difficult to replicate with self-represented parties.
“People think lawyers are going to be fighting with one another and boosting costs, but in reality, most lawyers know what to fight over and what not to,” Princewill says. “When a party is acting for themselves, there’s a lack of trust for the lawyer on the opposite side, and they might feel like they’re being taken advantage of, so you end up arguing over little things.
“It’s harder to get consent for late filing or to have a quick phone call because they have jobs. Instead, it can take days while you wait for them to pick up voicemail and get back to you,” she adds.
While few studies are available on the pressures and costs imposed on the justice system by self-represented parties, the Justice Canada report notes that judges and court staff report that their unfamiliarity with the rules and procedures of family court often requires extra time for explanations.
Princewill says some of those duties inevitably fall on the lawyers involved on the opposing side of the matter, but she always treads carefully since any attempt to explain the law to the other party comes with its own risks.
“You can’t push it too hard because you want to make sure it’s clear that you are not there to represent their interests. You’re there for your client alone. It’s a fine line to tread between trying to help and not offering advice,” she says.
Still, there are certain steps that she takes when dealing with self-reps to keep things running smoothly. For example, she tries to keep communications with the other party in writing as much as possible.
“It helps limit the number of misunderstandings and can be useful for them to be able to go back and have a reference. When correspondence is in writing, you’re more articulate and it tends to more clearly convey what everyone is trying to accomplish,” says Princewill.
“It’s not always easy to work with self-reps,” she says. “But, with lots of patience, you can deal with the challenges and help your client reach a final resolution.”