The situation is further complicated by the self-represented litigant not knowing what they don’t know, says Russell Alexander, principle of Russell Alexander Collaborative Family Lawyers based in the Whitby area.
They might be able to share in an asset, like a pension or an investment. But if they don’t know that they have a right to that, the issue may not be raised and the opportunity is forfeited, he says.
“The basic tenet of any agreement in Ontario is you want proper disclosure so you can make an informed decision as to the compromises you make,” he says. “So being self-represented you may not get the full picture on assets and rights.”
But, like McFarlane, he sees the emotional weight as often overwhelming. Alexander has had clients who were so anxious and nervous that they were unable to follow the proceeding and needed to be de-briefed afterward. That could be quite detrimental to an individual who tries to go at it without representation, particularly if they’re trying to make a decision.
Alexander points to unbundled legal services as a partial solution. Individuals can seek a lawyer’s help in drafting a document or get coaching to prepare an argument to help them with their case when they can’t afford to hire a lawyer for the entire case.
“This is sort of the fine line for the court to balance fairness and the process for unrepresented litigants and also enforcing cost consequences if they’re unprepared or being unreasonable,” he says, “because fairness also needs to be delivered to the party who has hired a lawyer and who is prepared and is ready to go.”