Covert socio-legal implications of self-representation in smaller communities
Friday, October 30, 2020 @ 11:14 AM | By Aria Kamal
“In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same.”
— Albert Einstein
The very essence of this statement reflects the paramount values of our justice system. As per the rule of law, every case, large or small, must be considered with substantive fairness, impartiality and equity.
In part one of this series, the feminization of poverty is determined as the single leading cause of access to justice issues in family law matters. The inherently expensive nature of family law litigation disproportionately impacts women, who are often left with no other choice than to self-litigate in matters that directly impact the future trajectory of their lives.
In the wake of detrimental socioeconomic realities arising from COVID-19’s impact, self-represented litigants experience more unique challenges in family law matters involving intimate partner violence and coercive control. This holds especially true for self-represented litigants in smaller communities, where the availability of legal counsel may be limited.
For many self-represented litigants, the very basic rules of evidence, standing and justiciability involved in the initial stages of any legal proceeding may prove difficult to ascertain. In the absence of legal advice and expertise, the possibility of committing substantial errors during self-representation is imminent. This becomes especially problematic when courts interpret a litigant’s use of irrelevant case law or mistaken legal terms as “vexatious” attempts to advance frivolous claims.
A finding of this nature may result in a stayed or dismissed proceeding under Rule 2.1 of the Rules of Civil Procedure, with hefty cost awards to follow. While self-represented litigants experience extensive challenges in navigating their way through the family law system, these implications are exacerbated for self-represented women who may not understand the laws themselves or the legal implications of their decisions.
With little to no awareness of the existence of mitigating systems such as the Office of the Children’s Lawyer, many self-represented women are unable to make well-informed, strategic decisions about their children’s future and economic well-being.
In cases involving coercive control, many interpret self-represented women as inherently “angry” litigants who refuse to settle, not necessarily as individuals who are fighting for the best interests of their children. With this notion, therefore, litigious actions of abusive ex-spouses may become invisible to all and they are less likely to be held accountable in these proceedings.
As coercive control tends to be routinely minimized as high-conflict situations, underlying issues in cases involving intimate partner violence are largely missed within family law proceedings.
According to Gwen O’Reilly, the executive director of the Northwestern Ontario Women’s Centre, the challenges faced by self-represented litigants are exacerbated in close-knit communities. “It is common for estranged partners to consult with multiple lawyers in the area in orchestrated attempts to develop conflicts of interest, impeding on the other party’s ability to obtain legal representation.”
In small communities where fewer lawyers are in practice, these coercive control tactics disproportionately affect women, leaving many with no choice but to self-represent. The intertwined multiplicity of additional socio-legal systems involved in varying stages of family law litigation allow for further avenues of exploitation.
In malicious efforts to obtain access and custody, an estranged spouse may file reports about their former partner’s behaviour and actions to their employer, immigration departments or children’s aid programs. COVID-19-induced cutbacks on employment further advance an opposing spouse’s demands for custody rearrangements, particularly in situations where mothers are no longer able to finance existing arrangements in the “best interests of the child.”
In the absence of counsel, settlement negotiations take a severe emotional and psychological toll on self-represented litigants. In fraught attempts to expedite separation proceedings, many accept less than what they are entitled to.
These underlying realities perpetuate travesties of justice within our family law systems, yet little attention is paid to the unique challenges of self-represented litigants in small communities.
In more recent years, the collective efforts of the legal community have produced effective solutions in ameliorating economic barriers within family law proceedings. Despite this, however, little attention is paid to address the social repercussions of self-represented litigation in smaller communities.
To uphold the rule of law and serve substantive justice in its most veracious form, we must continuously recognize and reinforce the realities of self-represented litigants in family law matters involving coercive control — no matter how big or small a community may be.
This is part two of a two-part series. Part one: Disproportionate effects of poverty on divorced women: An access to justice issue.
Aria Kamal is a second-year student at Lakehead University’s Bora Laskin Faculty of Law. She has a great passion for social justice, human rights and family law.
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