In recent years, many jurisdictions have seen an increase in self-represented litigants (SRLs).Footnote 1 This increase has permeated family law courts in both large urban centres as well as small rural areas. It is also clear that SRLs disproportionately suffer more negative outcomes in their cases than represented parties.Footnote 2 Therefore, the question is no longer whether the rise in SRLs is an issue, but rather what the responses are and should be to this phenomenon. Like many other narrower facets of the broader issue of access to justice, the solutions in the particular context of family law must be varied and tailored to the actual needs of those representing themselves in family law courts. This requires understanding the experiences and challenges that are faced by family law SRLs, and ensuring that SRLs participate in the design of any responses that are developed. Such an endeavour is consistent with a people-centred approach to access to justice, in which those who are directly impacted by the justice system are centred in the creation of viable solutions. Underscoring a commitment to a people-centred approach to the development of access-to-justice initiatives is the belief that individuals ought to be able to participate directly in the justice system and, in so doing, effect justice in their own lives.
This article will explore the nature of self-representation in family law, the challenges faced by SRLs when preparing for and participating in family law litigation, and how these considerations have helped to shape the design of the School for Family Litigants (the “School”) consistent with a people-centred approach to access to justice. The School was a pilot project that was developed and administered by the National Self-Represented Litigants Project (NSRLP). The School comprised a twelve-week online programme in which SRLs who were representing themselves in family law could log on and participate in lectures and Question and Answer sessions that were administered by the NSRLP. These lectures were taught by experts in family law, including members of the judiciary, leading family law lawyers, academics, and law librarians. Each session focused on different aspects of the family law regime, from the initiation of a case through to appeals, as well as related non-legal topics. Following the lecture, participant SRLs were able to ask the experts who were attending that week general questions about family law (although advice about individual cases was not provided), and engage in a live discussion with the weekly expert on different aspects of the family law regime.
This article will detail the structure of the School and explore the benefits and challenges associated with it. Part of this discussion is based on observation and data collected directly from School participants. The final section of the article will consider lessons learned and what these mean for future iterations of such a project.
The Growth of Self-Representation in Family Law
Although there has been an overall increase in self-representation throughout the civil justice system, the issue of self-representation is particularly significant in family law.Footnote 3 Thus, when designing responses to this phenomenon, it is important to try and understand why this is the case—namely, why family law contains a disproportionately high number of SRLs and how those factors might inform the type and scope of assistance that SRLs need when representing themselves in a family law matter. The nature of the interests at stake (child access and financial support) can result in life-altering outcomes; as such, these are not disputes from which many individuals can simply “walk away” or “lump.”Footnote 4 Moreover, the personal nature of disputes in family law may serve to prolong the legal process, as individuals are more likely to be emotionally invested in the outcomes and less likely to analyze the strengths and weaknesses of the dispute in a detached fashion—this is particularly evident when a litigant is without counsel. Added to this is the fact that family situations continue to change: children get older, individuals change or lose jobs, and relationships begin or end, so there is ongoing engagement with the family law regime. Finally, the family law framework often includes case conferences, settlement meetings, or interlocutory court proceedings that require the litigants to participate in multiple court proceedings. This results in a lengthy process that can be financially draining for a family.
Over and above the structural nature of family law and the impact of the serious and emotional interests at play, there is also a recognition that, within many family units, there is unlikely to be parity with respect to the financial resources that are accessible by the parties upon the break-up of a relationship. In more cases than not, there is in fact a disparity in resources that often requires one party to seek support from the other; the consequence of this disparity is also that the party without financial resources cannot retain legal counsel.Footnote 5
The Impact and Consequences of Self-Representation in Family Law
Accepting that the percentage of individuals who are representing themselves in family law is significant and on the rise, it is important to understand the impact of this phenomenon on the individual litigants as well as the broader family law legal system. In most capacities, SRLs remain outsiders in a legal system that is built for represented litigants, and by a very particular group of insiders, namely lawyers and judges. Thus, the impact of representing themselves in this system is significant.
A Patchwork of Legal Information
SRLs often scramble to secure piecemeal information from a variety of legal sources. They are attempting to understand a complex system that was not designed with their participation in mind. Thus, without the benefit of a legal education in substantive law, procedural law, or even legal research methods, SRLs may be likened to someone who is drowning: any and all means of staying afloat are used. However, in the case of legal information, this does not always result in accurate, comprehensive, or integrated information. SRLs access information via various websites or texts or individuals, all of which provide information on different aspects of the family law regime and court system. Interestingly, the introduction of Artificial intelligence (AI) in forms such as ChatGPT has introduced the possibility of assimilating legal information for SRLs as well as a corresponding risk regarding the accuracy of such information.Footnote 6
One consequence is that SRLs will secure fragments of legal information that do not actually assist them in representing themselves in the circumstances of their case. Aside from missing information or obtaining the wrong information, the piecemeal nature of the SRLs’ self-taught legal education results in a further consequence: namely that SRLs rarely see the family law framework as a comprehensive whole. This means that SRLs often fail to see how family law matters proceed, including the organization and scope of the procedural steps involved. As a result, procedural steps are overlooked, deadlines missed, and crucial elements of their case omitted. Moreover, unlike lawyers, SRLs cannot see the overall organization of the system in ways that are strategic to the presentation of their case. This is a distinct advantage that lawyers hold over SRLs. When lawyers advise their clients in a family law matter, they are not only providing advice in response to the immediate legal issue or question, but are also thinking about the long game of litigation. Thus, an important and valuable component of the lawyer’s legal advice to a client is often strategic analysis—what needs to be done when, and the longer-term implications of each step taken (or not taken). By contrast, SRLs are typically unable to assess the process from a strategic perspective, putting them at a distinct disadvantage when facing represented parties.
The Application of Law to Fact
An additional challenge is that SRLs are not adept at applying the law to the particular facts of their case. So, an SRL may unearth the leading case law that is relevant to their legal issue but fail to see how the case law maps onto their facts. This skill is taught during the first year in most Canadian law schools (and reinforced in the following two years) and is crucial to legal analysis and the development of legal arguments. Without undertaking this exercise, SRLs are left unable to effectively deploy the substantive law that they collect. The failure to understand the application of law to fact also limits SRLs’ ability to find relevant case law. This further impedes SRLs’ arguments in court and undermines the legal process, not to mention the evolution of common law.
As a result, SRLs are often outmanoeuvred by opposing lawyers who are proficient in the law and well equipped for making strategic decisions about the progression of their client’s case. In fact, empirical evidence from SRLs reflects a concern that opposing lawyers often attempt to undermine SRLs or take advantage of their lack of experience and legal education.Footnote 7
Problematic Perceptions and Stereotypes
Finally, the lack of knowledge and familiarity with court proceedings both compounds and reinforces certain negative stereotypes of SRLs that are held by members of the judiciary, as well as other court workers.Footnote 8 At a minimum, members of the judiciary may be skeptical of an SRL’s ability to effectively represent themselves in court and/or may believe that SRLs have made the choice to represent themselves.Footnote 9 More seriously, SRLs are perceived as difficult or as troublemakers who aim to disrupt the civil justice system. SRLs are perceived as a source of delay and additional cost within the court system, as their failure to understand the process often necessitates the expenditure of additional court resources, adjournments, and extensions.Footnote 10 Even more seriously, judges and court workers may be either hostile toward SRLs who appear to fumble in court when presenting their cases, or reluctant to assist a struggling SRL.Footnote 11
All of this is to say that SRLs tend to fare worse in their outcomes than represented parties.Footnote 12 Their lack of expertise and experience in law, as well as the negative stereotypes imposed on SRLs, undermines their ability to participate in the family law system. The consequence is that SRLs disproportionately lose their cases more than represented parties. And, although it is understood that the litigation process generally is a zero-sum game in which one of the parties is going to lose, it is unreasonable to accept that the losses should be so disproportionately suffered by a particular group.Footnote 13 Such disproportionate losses are inconsistent with a fair and just legal system, and serve to further undermine the legitimacy of the legal process and the public’s faith in the justice system.
Designing Access-to-Justice Initiatives
Access to justice remains a deeply complex and at times contested concept. As a result of this contest, there are a variety of ways in which to approach the design of access to justice initiatives that are directed at ameliorating the access to justice crisis in family law. The ensuing discussion does not engage larger access to justice questions about the organization or efficacy of the adversarial system - rather, it attempts to speak to the immediate and overwhelming needs of SRLs in family law. The responses that are generated as a consequence of this focus engage a user-focused approach that includes the voice of the group that is seeking access to justice. The NSRLP developed the School with these considerations in mind.
A recent shift in access to justice discourse that is consistent with developments in a variety of jurisdictions has prioritized the needs and challenges of ordinary citizens.Footnote 14 This people-centred approach to legal services and justice initiatives recognizes that meaningful access to justice requires engagement with the very people who are seeking to access justice rather than the exclusive engagement of service providers. This approach further recognizes that there remains a serious gap between the actual legal and justice needs of citizens, and what justice systems deliver.Footnote 15 The consequence is that citizens’ legal needs remain largely unmet. Therefore, closing the gap requires an understanding of individuals’ justice needs, how they see those needs being met (the nature of the corresponding barriers), and how programmes and policies might be more responsive to those needs.
Incorporating these principles into the design and administration of programmes helps to ensure that the initiatives actually respond to the individuals’ justice needs. First, centring the justice system users’ needs requires that those needs be identified as they are experienced by the individual. This is not asking lawyers or judges about what they think individuals need, but rather asking the individuals themselves. While individuals may not always identify their needs as legal and this can become a challenge for researchers, it remains crucial that the focus is on the individual’s perspective. A people-centred approach to access to justice must engage individuals in discussions about what they need from legal and justice services in order to improve their lives. This focus also extends to the evaluation of new or existing programmes, including how the programmes are experienced, whether the programmes are working, and how they might be improved upon.Footnote 16
Second, in developing a people-centred approach to access to justice initiatives, it is important to note that individuals’ legal issues are often intertwined with non-legal considerations. Thus, there is a greater chance of developing programmes and processes that promote improved life circumstances (as an objective of a broader conceptualization of access to justice), better citizen participation, and greater equality, when both the legal and non-legal elements of an individual’s problem are considered. This objective is reflected in the growing number of partnerships between legal and non-legal disciplines and institutions, whether those are health-related or social services.Footnote 17 Moreover, recognition of and collaboration between legal and non-legal disciplines encourage links to important non-legal resources that individuals may need, including educational support, health support, financial counselling, and emotional support or counselling.Footnote 18 In the context of SRLs, it is important to take account of the fact that the individual is both the client and the advocate. They are attempting to navigate the legal system as detached advocates while at the same time coping with the emotional, psychological, financial, and social impacts that the legal issue may have on their life.Footnote 19 This is particularly notable in the context of family law, where, for example, an individual who is representing themselves in a custody dispute is also attempting to cope with the emotional implications of potentially losing custody—this “non-legal” emotional component is likely to have a profound impact on the individual’s ability to present their case effectively. Taking the non-legal elements of individual’s legal problem into consideration allows the design of access to justice programmes that are empathetic and humanize the individual’s legal problem. A more holistic design recognizes the variety of barriers that negatively impact the individual’s ability to access justice, and attempts to include ways to overcome these barriers.
Third, people-centred justice initiatives should encourage citizens’ legal empowerment. Legal empowerment contemplates citizens being informed about and engaged in issues of law and justice that are relevant to their lives, as well as fostering citizen participation in a variety of lawmaking and law-administering processes.Footnote 20 A precursor to legal empowerment includes the development of legal literacy, which encompasses individuals understanding the law, its application, and limitations. Legal literacy, “fosters legal capacity of people to participate, manage their own matters and have a voice in the design and delivery of services.”Footnote 21 In terms of promoting empowerment, access to justice must include access to information and education, supported self-help, the ability to organize and articulate views, and the forums in which to do so. When these elements are included in access to justice programming, there is a great opportunity to promote the power and agency of people who are seeking justice. This in turn encourages broader participation, whereby those affected by injustice are more empowered to set an access to justice agenda.Footnote 22
Finally, people-centred justice seeks to build trust among justice system stakeholders. This in turn serves to strengthen the legitimacy of the justice system. The introduction of large numbers of SRLs has challenged some of the foundational principles upon which adversarial legal systems are built. Traditionally and ideally, legal cases are brought forward by justice system insiders—lawyers (trained and knowledgeable in the law)—on behalf of their clients and, in theory, courtrooms are inhabited by equally resourced and competent lawyers who present cases in terms that legally trained judges understand. However, that is frequently no longer the case. The consequence is that the process of law does not proceed as it has in the past (this is assuming a golden age of adversarial processes). In many contexts, there is a growing disconnect between citizens who are compelled to access the justice system without legal counsel and those who administer it—namely judges and lawyers. Many non-lawyers distrust the justice system, and this distrust manifests in a belief that the justice system does not recognize them and does not respond to their needs.Footnote 23 The further risk of this distrust is disengagement and exit.
As a result of the disconnect between the historic organization of the justice system and its current demographics, SRLs are left to stumble through complex legal procedures and substantive law with little to no guidance or support. This does not sit well with traditional justice system insiders, and SRLs are blamed for the resulting delays and increased costs. Moreover, there remains an assumption among justice system insiders that no reasonable person would choose to represent themselves, and therefore those who do are either delusional or tilting at windmills. These misperceptions are further exacerbated by the fact that cutbacks to social programmes have meant that many individuals who are struggling with mental illness or disability are without appropriate support in terms of housing, benefits, and therapeutic treatment. As a result, they are left to advocate for themselves (often in the wrong forum and without representation). Their presence in the civil justice (and administrative) system has served to reinforce certain stereotypes about who SRLs are. The consequence is that lawyers and judges are often dismissive or even downright hostile to laypersons in the justice system, and these attitudes, in turn, reinforce the belief that ordinary citizens as SRLs are not welcome in the justice system.
The School for Family Litigants
The NSRLP regularly develops practical resources but there was always the sense of a greater need for a holistic and interactive programme. Such a programme would address the particular needs and challenges of family law litigants who are navigating the legal system without legal assistance. The NSRLP began to work on a pilot version of the School in the spring of 2021. The curriculum was developed out of the NSRLP’s series of “Primers” for SRLs—a collection of practical guides on a range of topics that are relevant to SRLs. A twelve-week programme was developed in which students would get a foundation on the “basics” of family law, including relevant terms and processes, as well as practical tips and strategies for navigating the system without a lawyer. The twelve-week curriculum consisted of:
Week 1: Introductions—mapping of course
Week 2: Foundations—precedent, statutes, and family law terminology
Weeks 3 and 4: Research and application of case law and statutes
Week 5: Paperwork—affidavits, evidence, and service
Week 6: Hearings—preparation and participation
Weeks 7 and 8: Settlement—preparation and participation
Weeks 9 and 10: Trial—preparation and participation
Week 11: Coming to terms with outcomes and potential for appeal
Week 12: Review and Q&A
The organization of topics was reflective of existing data on family law litigants’ needs, and based on the organization of a “typical” case in family law. The programme ran weekly from 12 to 1:30 p.m. Eastern Time. The timing was chosen as a means of reasonably accommodating participants from across the country.Footnote 24 Each class would consist of a lecture that lasted for thirty to forty-five minutes from a guest speaker, followed by a panel discussion and question-and-answer period with two or three additional guests. The lecturers and panelists included lawyers, judges, academics, librarians, paralegals, coaches, and former SRLs. Based on its popularity, Zoom was determined to be the best software to deliver the course. The section below discusses the development of the School in the context of a people-centred approach to access to justice.
The School for Family Litigants as a People-Centred Justice Initiative
The design and the implementation of the School engaged a people-centred approach to access to justice. Underscoring this approach was the belief that, “the more people-centred a justice system and access to justice arrangements are, (as opposed to being designed only from the perspective of the service providers), the more relevant they will be to the lives of individuals and the more they will contribute to just outcomes.”Footnote 25 In the case of the School, the data collected by the NSRLP (and other researchers) reflected the great need for comprehensive and organized information and resources that assisted SRLs.Footnote 26 Specifically, family law litigants pointed to the need for individuals to both understand the working parts of the family law framework and develop skills in searching for and applying legal answers that are relevant to their specific case. This required the provision of substantive legal information about elements of family law, procedural information about the different types of hearings that are contemplated in family law regimes, as well as the practical skills that SRLs could deploy in preparing for as well as attending a hearing. Generally speaking, family law information resources do not typically include all of these components in one source or place. As a consequence, there was a deliberate effort to include all of these elements in the design of the School.
Moreover, in developing a programme that would assist and support family law litigants, it was important to take account of the non-legal as well as legal components of the issues that the litigants were facing. In the specific context of family law, this involves the emotional toll that family law issues have on the members of a family, combined with the anxiety of representing yourself. This is supported by a recent analysis from Statistics Canada’s Canadian Legal Problems Survey which found that approximately two-thirds of individuals with cases such as child custody also suffered from health issues.Footnote 27 Keeping this in mind, it was imperative that issues of mental health and well-being should be included in the School’s content. To this end, certain presenters spoke about issues of wellness and self-care, and the programme included opportunities for the participants to discuss the impact of their legal issue on their daily lives and well-being. Following the completion of the School, it was also important that the participants had opportunities to continue to share their experiences with others who were going through similar experiences.
As a way to foster community and support, a private Facebook group was set up for the participants and many took an active part by asking questions, sharing stories, and engaging in the material together. The students requested that it should be allowed to continue after the completion of the course. In an effort to encourage a sense of community among SRLs who were experiencing similar legal issues, the NSRLP staff created an “alumni” group that could house any interested “graduates” from the School. Currently, this system is working well, with one group for active School participants and one for alumni.
The development of legal skills and knowledge can be an empowering experience for the non-lawyer, and this is particularly true when the development of these skills is facilitated in a supportive and participatory learning environment.Footnote 28 By accessing legal information, non-lawyers develop legal literacy around the nature, scope, and processes of law. Arguably, this legal literacy remains with the individual after the resolution of their immediate legal problem. Moreover, an individual’s legal literacy may also be further distributed through the individual’s relationships and community, thereby contributing to a larger community understanding of law and the legal system. In order to encourage this retention and transmission, the legal information that is being presented must be clear, straightforward, and specifically geared toward non-lawyers. Taking a page from the health-care field, the relay of legal information should be in terms and ways that are relevant to those outside the profession. One way to ensure that this occurs is to provide opportunities for participants to ask questions, seek clarification, and apply the information to their specific circumstances. In providing for this participation, the organizers can assess how and whether the legal information is effectively understood. Thus, an important component of the School was the inclusion of the Q&A sessions following each weekly lecture. The Q&A sessions were not restricted to the topic that had been discussed that week, but were limited in terms of the information-versus-advice delineation. Participants were able to ask questions that related to their particular legal case but would not receive legal advice about their case. In the context of the delivery of legal information programmes, this particular component was unique. While other public legal education resources in family law might contemplate having individuals’ submitting questions to a website or chat function, there were often no opportunities to speak with an expert directly to ask questions as well as follow-up questions.
Finally, if a people-centred approach to access to justice seeks to strengthen the legitimacy of the system in the eyes of the users of the system, then it is imperative that users are provided with opportunities to engage with those who are administering the system—namely judges, court workers, and lawyers—and are treated with respect and dignity when they engage with justice-system insiders.Footnote 29 In settings in which they are engaging directly with members of the judiciary and the profession, SRLs are able to demonstrate their serious attempts to interact with the law and its processes. And, at the same time, through engaging directly with members of the judiciary who explain the process, their expectations, and the limits of their position, SRLs can also learn to better understand the roles of judges and lawyers, and potentially feel less excluded from the justice system. Such opportunities for SRLs, judges, and lawyers to exchange views, experiences, and knowledge in a respectful setting were integral to the design of the School.
Implementation of the School for Family Litigants
The first session of the School was launched in January 2022. To test the efficacy of the programme and ensure its manageability, forty SRLs were accepted into the first iteration. Registration was increased to fifty participants in the second iteration of the School. As discussed in greater detail below, prior to heading into the second session of the School, the NSRLP undertook a survey of the School’s first participants. Because of this survey, certain aspects of the programme were modified, including small changes to the content as presented by the various lecturers. Additionally, there were some changes that resulted from the availability of the lecturers, with new tutors’ taking over certain subjects. The second session of the School (Fall 2022) ran as the first one had.
Following two runs of the School, efforts are underway to scale the project up to a sustainable permanent programme. Additionally, work is also underway to adapt the School into a hybrid model, which will see the use of recorded lectures as well as live sessions. Finally, since the original drafting of this article, the NSRLP has begun to develop province-specific versions of the School.
SRL Participation Survey
As noted, following the first iteration of the School, the NSRLP collected feedback in the form of an evaluation survey. The NSRLP distributed an online survey to all of the individuals who had registered for the School. Due to the fact that this was a pilot project, the purpose of the survey was to explore the efficacy of the delivery model. As such, the questions focused on how the participants felt about receiving legal information in this format, including what content was useful or not and what content the SRLs wanted included, as well as their final thoughts on the programme. The survey responses from both students and professionals who had taken part as lecturers and panelists were generally positive (more detailed discussion of the feedback is provided below). It is important to note that, at this junction, the SRLs were not asked about the outcomes in their respective cases, as the survey was undertaken immediately following the completion of the first iteration of the School, and many of the SRLs’ legal matters were at different stages of completion. While the NSRLP believes that an investigation of the relationship between the SRLs’ participation in the School and the outcomes that they were able to achieve in their legal matter may be an important evaluative tool going forward, there is always a concern about the ability to adequately measure the impact of the School on the participants’ outcomes. In light of the challenges associated with undertaking this type of socio-legal research,Footnote 30 any inquiry regarding the School’s impact on outcomes must be carefully and deliberately developed.
Survey Feedback
Included below are some of the observations that were drawn from the survey results, together with a sampling of some of the written responses collected.
On being asked, “What course content did you find most useful?,” the participants offered a range of comments. One of the themes that was reflected in these comments was the fact that the content contained comprehensive information on family law and procedure that had been broken down into smaller, more digestible pieces that contained various components of litigation. This allowed the participants to understand how different elements of the family law regime fit together and, more generally, how the process proceeds. Additionally, the participants valued the sharing of information and experience between participants and instructors. The following represents a sample of the responses to this question:
“Everything TBH [To be honest]. Probably the only thing that would have deepened the experience is hearing from the front-line court ‘counter’ staff—they might have some good tips and tricks too.”
“It was useful to hear the various elements of the course presented in weekly doses in one place, rather than my searching the Web and never being sure what information was accurate and trustworthy.”
“The overall concept for the course was the best part: a coherent and sustained curriculum, a professional and intellectual and group-based learning approach, many resources shared and discussed and many excellent guests along with a reliable, kind, savvy guide through the entire thing.”
“I felt all the sessions were useful. First, the course provides familiarity with the family court process and acceptable practices. I learned the risks and advantages of being an SRL.”
“Personal experiences from other members. Real life testimony of what actually transpires in the courtroom.”
In addition to soliciting data about what had worked, the survey also asked, “What course content did you find least useful?” Again, the responses reflected certain themes. For instance, respondents indicated that the provision of information that was jurisdictionally specific (as opposed to generalized across provincial jurisdictions) would have been more helpful. In the context of family law, this presents a particular challenge for the School, and one that prompted the NSRLP to consider the possibility of partnerships with jurisdiction-specific organizations going forward. Through the responses to this question as well as the question discussed above, it also became apparent that SRLs struggle with navigating courthouse processes and interacting with courthouse staff and clerks, and more information could be provided in this regard. As such, going forward, it may be important to include more practical tips for filing and interacting with court staff in different court contexts. The following is one of the comments on the content that was least useful to the participants: “It would be really great to have provincial versions of this learning across Canada. Have province specific templates and current case laws to reference. More on understanding precedent and how to interpret case law. Align with domestic violence shelters to have relevant current legal precedents.”
The survey participants were also asked, “Is there anything you wanted or hoped to learn that wasn’t included in the course?” The answers provided to this question tended to provide more helpful data in terms of both thinking about future iterations of the School and building on the existing model. For instance, the data reflected SRLs’ need for more time spent learning practical skills such as drafting court materials, presenting oral submissions, and examining and cross-examining witnesses. Additionally, SRLs wanted to better understand how they might more effectively interact with opposing parties, particularly when those parties are represented by counsel. This is consistent with preexisting access to justice research, which has highlighted the challenges that SRLs face when engaging with opposing counsel.Footnote 31 As such, going forward, it would be important to incorporate some discussion of the ethical obligations and boundaries that are engaged when lawyers are acting against SRLs, as well as tips and tools for SRLs who are negotiating these interactions. Finally, the data collected suggest a need for an advanced family law school for individuals who are preparing for trial (as opposed to those who are commencing family law litigation). Given the potential length and complexity of litigation, it may make sense to break out these elements going forward. Essentially, the litigation process might itself be separated out into different iterations of the School, both of which contain both substantive and procedural law as well as practice-based direction for completing different steps.
The following is a sample of the responses that speak to some of these considerations:
“I would like to have learned more on the different paths that can lead to a trial and all the various steps that can be taken in between … I have found in my own case that nothing has been a cookie cutter situation.”
“How to actually conduct a trial—how to give evidence in the first person—mock sessions would have been helpful.”
“More about how to draft paperwork or use the forms and how to submit them into the courts.”
“In person procedure and legal strategies on how not to be bullied by opposing counsel.”
“The course was very trial-focused, however in my case I am now facing multiple hearings post-trial to deal with outstanding issues. I think most of the material was still relevant, but perhaps some content specific to these kinds of hearings? As well, I would have liked some more exploration of coercive control and how it can be appropriately brought up in court, and for what kinds of decisions/matters evidence of coercive control would be relevant.”
“How to defend against a motion for summary judgement?”
Finally, the participants were asked whether they had “Any final thoughts or suggestions?” about the School. Interestingly, but perhaps not surprisingly, the participants were grateful for the programme. While the NSRLP is cognizant of the “customer satisfaction” critique that might be levelled against such surveys, SRLs’ enthusiasm for the project is also reflective of the need for comprehensive and interactive legal information. Not unimportantly, the responses also reflected a sense of isolation that many SRLs face when representing themselves. Generally speaking, the justice system can be overwhelming and isolating for SRLs. The School provided an opportunity for individuals to share similar experiences and recognize that they were not alone. This proved to be a significant strength of the programme. The following comments reflect these sentiments:
“I am filled with gratitude for being able to participate and have the resources provided to us by this program.”
“Thank you for doing this and making us feel like we are not alone.”
“Thank you for helping all of us feel seen and validated. It can be a very lonely road but with this course I felt like I could maybe find a glimmer of hope in what is a very challenging time.”
“The most helpful part to me was the validation that navigating the family law system is challenging. All of the ‘insider tips’ about opposing counsel, the system, judges etc were beyond helpful. As an SRL, I have felt very alone. This course validated that going to trial by myself and trying to figure out the system IS challenging and can be very draining/frustrating. If this course had been available 7 years ago when my first matter was heard … I believe I would have made different choices.”
“Please enroll me in the Family SRLs 102 course. I thank the organizers of this course. As a non-working and temporary homemaker respondent, the course was really helpful.”
“Most participants take the course while their matter is under way. Would have been more beneficial to have taken the course prior to undertaking proceedings (e.g. filing motion to vary).”
“I love all the thoughts and all the effort put into this course, it is a huge undertaking and having to seek out and obtain the panel (and coordinating) and managing this program. Thank you for putting this course together, appreciate it.”
Challenges Observed and Lessons Learned
As noted above, responses from participants who participated in the surveys were generally positive. However, as with any pilot project, it is important to critically evaluate materials and procedures with a view to improving on what worked and rectifying what did not, while at the same time recognizing the limitations of such a programme. Consistently with a people-centred approach to access to justice initiatives, this endeavour is informed by the participants’ experiences, as well as the NSRLP’s observations.
In terms of administering the programme, the NSRLP noted certain practical challenges, the first being scheduling a time for the weekly sessions that was accessible to all the participants. The NSRLP had assumed that the Eastern Standard lunch hour would be the best time slot (particularly given the varying time zones across Canada); however, there were dips in attendance even during the lunch hour. While many participants found that the scheduled time worked for them, some had either work-related commitments or family commitments that interfered with their ability to attend the live sessions. And, although the written materials and recordings of the lectures and question-and-answer periods were made available to participants to view at their convenience, students were only able to pose questions to the panelists during the live sessions. In addition, the NSRLP struggled to address a very small number of participants (two individuals in the second iteration of the School) who saw the live sessions as a platform from which to air their personal grievances with the family law system. The vast majority of the participants were respectful, engaged in the discussions, and supportive of their fellow participants. However, on a couple of occasions, one or two individuals attempted to ride roughshod over the week’s expert or dominate the discussion by focusing on their own case. In both instances, there was a tension between providing the legitimately frustrated participant with space to express those frustrations, thereby ensuring that all participants had an opportunity to participate in the conversation, and keeping the conversation relevant and constructive for all. In essence, the NSRLP faced the question of how a project such as the School can balance the direct and often raw engagement of SRLs in conversations about their participation in the justice system with the need to ensure that these conversations remain respectful and productive. This question speaks to a broader challenge within access to justice as it relates to SRLs—namely, the fact that many SRLs are viewed as vexatious or emotionally unbalanced when, in fact, their expressions often stem partly from a deep sense of being outsiders in the system, the corresponding perceived unfairness of the system, and the frustration that this breeds. The further concern that this raises is how such expressions of frustration and skepticism will impact the perceptions of the justice system insiders who participate in the School—that is, will these expressions serve to undermine the objective that is associated with having justice system insiders engage with SRLs in a serious and constructive manner?
The national nature of the programme also presented a challenge. Because this programme was funded by the federal Department of Justice and the NSRLP is a national organization, it was important that the project should be offered to SRLs across the country. However, generally speaking, family law is a matter of provincial jurisdiction. And, although many of the provincial jurisdictions have very similar family law frameworks, there are still important differences between the provincial regimes. Moreover, the lawyers and judges who participated in the programme are situated within a particular jurisdiction and therefore limited in their discussions. Because of these differences, it was necessary to ensure that the written materials and guest lecturers were sufficiently general in their coverage of material or in a position to acknowledge specific differences that might exist between provincial jurisdictions. This was less of an issue with some topics. For example, developing research skills, discussing mediation processes, and addressing issues of wellness are issues that occur across all jurisdictions. However, in topics such as the order of procedural steps involved in the family law regime or the materials required of litigants at certain stages of litigation, there are variations across jurisdictions that must be clearly highlighted for the litigants who rely on the information provided. The “national” versus “provincial” challenge also highlights a more fundamental tension within access to justice programming—namely whether targeted access to justice initiatives that are developed within specific communities with particular individuals in mind are more effective than broader-based and wider-reaching national programmes that are distributed to larger populations. In developing a national programme, the NSRLP recognized the potential limitations of such a programme in terms of both addressing a particular community’s needs and being able to affect much-needed assistance.
This leads to a further challenge that is often raised in the context of access to justice initiatives: the distinction between legal information and advice. Not unsurprisingly, SRLs are often in great need of practical advice about their own case: What should they do next? How should they respond to the opposing party and what should they submit to an adjudicator? While they may be able to secure information through a variety of materials, rarely are they able to contextualize this information within the personal circumstances of their own case. Thus, during the live question-and-answer period with the guest lecturers, it was, on occasion, challenging for the lecturers to walk a fine line between providing contextualized information about a particular aspect of substantive or procedural family law and advising a participant about what they ought to do. It is worth noting that other access to justice projects have developed rules around the provision of summary advice whereby lawyers may provide informal and unbundled advice to an SRL whom they have met briefly, without engaging in a solicitor–client relationship.Footnote 32 However, this was not contemplated in the School, as it did not allow one-on-one advice within a live question-and-answer session. A further concern involved the possibility of various ethical issues, including confidentiality. As such, the programme contains a serious limitation associated with the ability to assist SRLs in resolving their individual family law legal problems.
The final operational challenge involved the reach of the project. Registration for the School was filled within hours of its being offered to the public, with many more individuals’ contacting the NSRLP about potential spaces. One of the benefits of the programme was its smaller size, which allowed direct and personal interaction between the participants and the guest lecturers. However, the overwhelming demand for the project highlights the challenge that is associated with keeping it small. There remain a significant number of family law SRLs without access to contextualized information, feedback, and support.
In terms of broader limitations of this type of programme, it is important to acknowledge that the School is in many respects responding to an immediate and urgent need for comprehensive legal information that family law litigants can use as they navigate the family law legal system. However, the design and operation of the School does not address some of the broader systemic issues within the family law framework, including the procedural organization of family law in terms of the various steps undertaken by litigants, the potentially drawn-out nature of family law matters, and the inability of individuals to secure affordable legal representation. Such a programme does not address the even more fundamental question of whether the adversarial system is an appropriate forum for family law disputes. All of these systemic challenges require deeper and more comprehensive reform to the family law system. While such reform was not the ambition that was driving the development of the School, it does arguably offer a necessary first step by inculcating the discourse between justice system insiders and outsiders.
Where the NSRLP Goes from Here
The question of where the NSRLP goes from here is significant. There is no disputing that initiatives such as the School are desperately needed. The combination of written information, comprehensive discussions on different aspects of the family law process, live lectures from family law experts, and the ability of the SRLs to gain further insight and clarification from discussions with those experts are important access to justice objectives. Moreover, the SRLs’ ability to connect with family justice system insiders as well as other SRLs who are going through the same processes positively promotes trust in the family law system as well as community-building, both of which are important objectives in people-centred justice initiatives. However, the limited reach of the programme (in terms of both the subject matter and the number of SRLs), its inaccessibility (timing-wise) to some participants, and its informational focus prompt the question: How might the project be expanded while maintaining the important elements of the original pilot?
Crucial to future iterations of the project is the acknowledgement that the design entails more than the provision of information to SRLs. The ability to seek clarification and interact directly with experts in family law brings the information to life for the SRLs. This is reflected in other access to justice projects that provide information via a live question-and-answer format. For example, in one summary advice project in Ontario in which individuals with legal problems call a helpline and speak to a lawyer about their civil justice matter, there are approximately 31,137 calls in 2023.Footnote 33 Many of these calls focus on procedural questions such as: How do I complete a specific procedural step? What do I need to show the court? How do I respond to a specific request from the opposing party? Thus, the School must maintain a live segment that allows direct interaction between participants and those who are delivering the content. This element of the programme is unique. It provides an opportunity for participants to put the “pieces” of information that they secure together and, at the same time, understand where they need to go in their case. Overall, this strengthens their legal comprehension and ability to participate effectively. Moreover, the exchange between SRLs and judges, lawyers, and academics is critical to continuing to challenge perceptions as well as demystify law and legal institutions. Essentially, talking to each other humanizes everyone—participants are revealed to be everyday individuals who are attempting to resolve their problems, while adjudicators and lawyers are revealed to be individuals who are sometimes tasked with having to make very difficult decisions, and navigate complex and fraught situations. This represents more than a commitment to civility: rather, it embodies the foundation on which stakeholders may engage in a meaningful discussion about the family law system and its potential reform.
However, there is also a recognition that, unlike the traditional law student who studies law full-time for three years, the SRL’s primary focus is not the law. Work, family, and a host of other commitments mean that the delivery of information must be flexible, targeted, and contained. This is an issue that plagues the delivery of access to justice initiatives more generally: how to practically provide services in ways and at times that are accessible for individuals who have a myriad of other commitments and for whom the study of law is not a career. Effectively, legal information is for many SRLs a means to an end. Thus, accessibility in this context means making the information available in ways that make sense for adults with full lives.
Finally, going forward, it is important to build collaboration among access to justice providers at the provincial level so that provincial access to justice organizations could build family law schools within their own jurisdictions. While the NSRLP determined that the project would be offered nationally in accordance with its mandate, it is now developing versions of the School that are situated within a particular provincial context. This would allow the tailoring of jurisdictionally relevant information, the building of more localized communities, and the assurance of more immediate and direct engagement between SRLs and adjudicators/lawyers who are working within those jurisdictions. This agenda would speak to the need for localized, community-based programming that seeks to respond to individuals’ needs. However, proceeding in this manner also highlights one of the limitations of the programme—namely, broader systemic reform to the family law regime. Related to this tension is the broader need to expand beyond family law topics. There are a host of legal topics and issues that SRLs need to better understand. These include, among others, administrative hearings and related procedures, as well as judicial review; preparation for and participation in procedural motions, including summary judgment motions (often weaponized against SRLsFootnote 34); and the presentation of evidence more generally.
Conclusion
The School that was created by the NSRLP was developed in accordance with an approach to access to justice that puts the needs and challenges of the users of the justice system at the centre of its design and implementation. At the same time, it seeks to secure commitment and participation from justice system insiders. This entails ongoing research, programme development, and refinement of the programme with input from SRLs. The operation of such an approach seeks to ensure that SRLs are provided with opportunities to engage with legal experts in ways that deepen their understanding of the law and the legal processes with which they are compelled to engage. This will ensure that they are supported in their endeavours. To scale up this programme and remain effective as a people-centred access to justice initiative, it will be necessary to continue to engage users in assessments of the programme and build collaborative partnerships with other access to justice stakeholders across the country who are committed to advancing a people-centred approach to justice.
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