Farrah Jinha is part of a growing trend of people representing themselves in
court. The Toronto woman has launched a podcast and website to try to help
others navigate Canada's court system alone. (Heather Waldron/CBC)
When Farrah
Jinha's 15-year marriage failed, she never imagined it would result in an
eight-year legal battle, culminating in 2021 with an 18-day trial pitting
her — alone — against her ex-husband's professional legal team.
But faced with a $200,000
retainer fee that needed to be paid to keep her lawyer, Jinha says she was
forced to take over her divorce proceedings in B.C. Supreme Court.
"I was scared, for sure, but
I was also very determined to get this done, because the sense of injustice
was just too big," said the 53-year-old, who now lives in Toronto. "I gave
up my career. I stayed at home and I raised my kids and my former husband
was going to leave with everything. That just didn't seem right or fair."
In order to
represent herself, Jinha ended up missing work in order to prepare chamber
applications and evidence, and taught herself about the legal process by
studying public legal education blogs and begging for help from experts like
family law arbitrator and blogger John-Paul
Boyd. After the trial, she even considered going to law school, and
still may pursue paralegal training.
Jinha ultimately won her
case — which involved hundreds of thousands of dollars — but the challenges
she faced inspired her to launched a support group and podcast called SmartGirls'
Guide to BC Family Law to help others navigate the system.
"Divorce is not for the poor
or even for the middle class," said Jinha.
Leitch says the number of people who are self-represented has grown to the point
where approximately 50 per cent of all civil cases in this country involve
"self-rep." She and other legal advocates say it's the cost of legal services
that's driving up do-it-yourself
law.
Leitch said that a week-long trial can cost between $50,000 and $80,000.
"When we have large legal firms at the top charging $1,000 per hour, people
can't afford that," said Leitch.
Crisis in family law
There is a lack of cohesive, current data across Canada on legal
self-representation, which lawyers and judges say is difficult to track.
According to a 2013
study conducted by NSRLP founder Julie Macfarlane, the rate of
self-representation was up to 80 per cent in some family courts. A follow-up report
in 2021 revealed that of the self-represented litigants surveyed, close to
60 per cent were involved in a civil or family matter, earned less than $30,000
per year and couldn't find access to free legal advice.
Most reported feeling the justice system was "unfair," and many described a
sense of "the odds being stacked against them."
Advocates say the rising number of lawyer-free litigants is problematic. The
legal system is meant to be adversarial — with strong lawyers on each side — but
the high rate of self-representation creates lopsided justice, pitting an
untrained individual against a professional.
B.C. Court of Appeal Chief Justice Robert Bauman told CBC that he sees "too
many" litigants representing themselves with too little training.
"It's in the family law area that we are facing the crisis," said Bauman,
who chairs Access to Justice B.C., a cross-sector group working to improve court
access.
In 2022, the number of self-represented litigants in provincial court
appearances increased by seven per cent and involved 22 per cent of B.C.'s Court
of Appeal cases, he said.
One legal expert says that approximately 50 per cent of all
civil cases in this country involve self-representation. (Belenos/Shutterstock)
Bauman and Leitch say more data is needed on self-representation in Canada, but
agree that people are driven to take over their own legal matters due to the
cost.
Canadian lawyers are self-regulated by law societies, which do not cap fees.
Cheaper options
Forgoing legal representation may save money, but experts warn it comes with a
larger price.
Christopher McPherson, president of the B.C. Law Society, says self-represented
litigants lead to extra court time, cause delays and put an extra onus on
judges, all due to their lack of legal experience.
Leitch says many unrepresented litigants "don't know the procedures. They don't
understand the law. They don't even really understand the language that gets
spoken between lawyers and judges."
McPherson said "that leads to concerns about proper access to justice."
As a self-representing litigant, "you're dealing with very traumatic, stressful
situations, and trying to navigate that on your own is very difficult."
But cheaper alternatives are scarce. Leitch advocates for more affordable
paralegals — who charge approximately $75 to $250 per hour — more legal aid
funding and for law firms to be required to do more pro bono (or free) legal
work.
In 2008, Ontario began licensing paralegals,
who offer less expensive legal guidance, at least for summary conviction and
other civil matters, according to the Ontario Law Society. There's a push in
other provinces to follow this example.
Litigants can also use a so-called McKenzie Friend, which is usually an
unpaid support person who can help them organize, take notes and prepare for a
trial. Established after a 1970 divorce case in England, this option is
recognized in the U.K., Canada and other courts.
Other than that, you must be a lawyer to represent another person in court in
Canada. So if you can't afford one, you fend for yourself.
Bauman says courts are pivoting to offer free legal training and try to
streamline services to help litigants who can't hire lawyers.
"We have to make ourselves relevant as a dispute-resolution forum or we're going
to go the way of the dodo," Bauman said.
Self-reps seen as 'waste of time'
In B.C. he says a non-profit, called Access Pro Bono, counsels litigants headed
into B.C.s Court of Appeal, but it's challenging to prep laypeople for trials,
as "the law is complicated. We can't make it too simple."
Critics say courtrooms need to evolve, shifting from an adversarial system set
up for lawyers.
"We ought to be thinking about how we do cases in court when there are no
lawyers in the room," Leitch said.
She also wants lawyers to "unbundle" legal services and let people pay for
partial services — allowing them to do their own research, for example. As for
judges, Leitch says they need to take a more active role, helping self-reps
question witnesses and even present evidence.
Farrah Jinha, 53, looks through the pile of binders
she put together while dealing with her divorce over an eight-year
period that involved a trial in B.C. Supreme Court. (Heather
Waldron/CBC)
But for now,
litigants like Farrah Jinha are, for the most part, on their own.
During her divorce case,
she had to deal with everything from paying for all fees and
photocopying to fending off an unsubstantiated contempt of court
accusation for allegedly violating an undefined court order, which
was tossed out. She also fought to convince a judge that it was
inappropriate for her son to be called to testify at trial.
"You get judges that are
impatient. They see 'self-rep' and they're like, this is going to be a
waste of time," she said.
In the end, Jinha says
she won her case, but the process left deep fissures in her family.
"It's a very long,
drawn-out, arduous process that I think has to be fixed."
Corrections
A previous version of this story said paralegals are
equivalent to legal assistants. They are not. The story also said
Ontario began licensing paralegals in 2019. In fact, Ontario started
licensing them in 2008.
First, lets give credit where credit is due. The CBC ran this story as usual
with a female subject, with the author being a female again portraying women as
victims
thinly disguised as gender neutral.
Second, CBC did not allow any comments on this story. CBC rarely allow comments
on any story of public importance, comments are only permitted on safe stories.
The CBC AI, the CBC "bots" remove any post that has anything "father's rights",
criminal, law, Judges, justice , Rights, Charter of Rights and Freedoms, obstruction
of justice or police and the word criminal in the same comment will get your
comment removed and you can even be banned from CBC.
This article is way behind the times and
full of inaccuracies. Farrah Jinha talks about wanting "unbundling of legal
services, when that is what happens allready.
Then this story really portrays her as a victim. We hear her side that she had
to fend off an "unsubstantiated contempt
of court accusation for allegedly violating an undefined order"
Wow, thats a mouth full, her case appears on Canlii and she was very
successful on a property issue.
There are two prior cases and as usual the mother
sweeps the plate. The fact is, represented or unrepresented, women have a very
high rate of success to the point that males are intimidated into not wasting
their time getting costs ordered against them.
