The number of litigants in family court who do not have lawyers has reached a critical point, with between 50 and 80% of cases now involving at least one party who is unrepresented. While not having a lawyer is of concern to any litigant, the impact on a woman who has left an abusive partner is significantly greater.
In fact, no single issue arises more often as a serious concern among women experiencing violence and frontline service providers than the lack of access to legal representation in family court.
While most people without lawyers are in that position because they cannot afford to pay for one and do not qualify for legal aid, there may be other motivations for an abuser. Abusers may choose to represent themselves even if they could afford to pay (or would quality for legal aid assistance) for a lawyer because they want to confront their former partner and to engage directly (and abusively) with her.
There are serious concerns when either party in a case involving violence does not have a lawyer. Without a lawyer, the woman may be unable to present important and relevant evidence or to argue points of law (for example, the provisions of the best interests of the child test that relate to family violence). She may not know she can call expert witnesses or have the financial resources to pay for them.
She may enter mediation because she does not have a lawyer and, without a lawyer to review any agreements reached in this process, she has no guarantee that the outcome upholds her legal rights or that it will keep her and her children safe.
It is more likely a woman may concede on important legal issues because she does not have access to a lawyer to assist her in making these decisions or because she is exhausted from managing the legal process or because her abuser’s ongoing bullying of her has worn her down, used up her financial resources and left her terrified for her safety.
If it is her abuser who does not have a lawyer, the woman may be exposed to ongoing harassment and intimidation by him without the filter of a lawyer between them. He may have to serve documents on her directly, for instance, if she does not have a lawyer. Or, even if she does, he may still attempt to contact her directly, claiming he just wants the two of them to try to sort things out themselves.
If she has a lawyer, her costs may mount because an unrepresented party on the other side means the case usually takes longer to resolve and is less likely to settle.
Women can face challenges even when they have a lawyer if that lawyer is not knowledgeable about violence against women. The subtleties, complexities, and nuances as well as the serious and ongoing safety issues involved in violence against women cases can only be appropriately handled by lawyers who have specialized knowledge, understanding and skills.
One of the dangers of lawyers without the necessary knowledge handling these cases is that they do not understand the importance of the abuse in custody and access cases and so do not always present the evidence needed to raise the issue. In fact, in some cases, lawyers actually discourage their clients from raising allegations of abuse in their pleadings, with the result that important and legally relevant information does not reach the judge.
As a service provider, you have a critical role to play when assisting a woman who has no lawyer or who has a lawyer who does not understand violence against women.
At the beginning of a woman’s case, or even before she has made a final decision to go to family court, you can assist her by reviewing basic family law information and providing an overview of the family court process. You can help her understand what the legal issues are that can be dealt with in family court and what her rights and responsibilities are, explain the relationships between family and criminal court if she is involved in both courts and discuss any child protection issues or concerns that may have arisen. Early in the case is a good time for you to review any safety plan that she has in place and discuss whether it needs some updates now that she is going to court.
You can provide her with a 2-hour advice certificate or assist her in seeing duty counsel so she can get some summary legal advice.
When discussing family court process with her, you can make her aware of the various services available at the family court in her community and give her some information about mediation. You can let her know that Legal Aid Ontario now provides some financial assistance for independent legal advice for people using mediation. The financial criteria to receive this assistance are more relaxed than for a legal aid certificate, so she may qualify for this support even if she would not be able to get a certificate. If this is a possibility and if she wants to try mediation, you can assist her in making an application.
As her case moves forward, you can provide very important support by assisting her to gather the evidence she needs for her case and to complete her court documents, debriefing with her after she has filed documents or received material from her partner, helping her prepare for court appearances and debriefing with her after those appearances.
You may be able to advocate with and for her with systems and individuals she encounters along the way. If she has a lawyer, but the lawyer does not seem to understand the violence issues, you may be able to help her educate her lawyer or, if that is not successful, assist her in changing lawyers.
Perhaps most importantly, you can be a steady presence with her, offering non-judgemental support, comforting her when things don’t go well and helping her stay focused on her goals.