Litigants' Rights & Responsibilities

This document is now maintained on my blog Access to Justice in Canada and was most recently updated on 15 September 2014. I have maintained this page to preserve reader's previous comments. Please visit my new blog. As always, I welcome your contributions and criticisms.

17 comments:

  1. Hi JP - I think a note about the self-represented person's obligation to treat the other lawyer with courtesy is required. All too often the 'other lawyer' is seen as the enemy when most of us are bending over backwards to resolve the issues. Dealing with self-represnted persons is extremely difficult sometimes, and a little courtesy goes a long way. My two cents.
    Karen.

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    1. As a self represented party, my first hand experience has proven that the other lawyer always acts in the best interests of their client's position (that is what they are hired to do), misrepresenting the equitable laws to the self represented party to trick them or coheres them into signing away their lawful entitlements. They use financially unjustified threats of expensive legal court actions that only benefit the lawyer with legal fees to force the non represented party to give up. The lawyer is out to win for their client only. Do not even think lawyers deserve courtesy from self represented parties when they are willfully for their own financial benefits using every legal trick they know to win.
      A lawyer for my ex has manufactured false evidence, purposely helped withhold full disclosure and even had her law firm act as agent in the sale of a marital asset at $100,000 less that the agreed Separation Agreement price while she represented the Agreement in a family court action and conspired to hide the facts from the courts.
      I represented myself twice in BC Supreme Court. False evidence is frequently handed to the judge after the arguments are over, so the self litigant cannot object and the Judge is unduly influenced in his court ruling.
      My advice to all who might represent themselves.........Get a good MALE LAWYER.
      Dirty tricks is the name of the game.

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  2. Hi JP - I am wondering if the rules of court mean anything? I had a lawyer for the initial part of my divorce proceeding but ran out of money and I am now self represented. My ex is a lawyer and she decided to represent herself as well. We attended the JCC and the judge made some orders regarding financial disclosure that my ex was supposed to provide me. She was also asked to draft the orders. 14 days passed and neither the order nor disclosure was passed on to me. I filed a notice of application and set date for hearing and served the documents. No response was filed within the allowed timeframe. The day before the hearing I received a call from a lawyer saying she was now representing my ex-wife and was going to request an adjournment. I did not agree. She showed up the day of the hearing with a response that was filed that day and the judge said I either move forward with their response in (I had 2 hours to review it)or give them their adjournment (I am having serious financial problems and time is not something I can afford). I had no choice but to move ahead.

    My question....when is there a penalty for violating court orders and when do the rules of court need to be followed. The judge said it happens all the time and if she didn't allow her affidavit in it would be appealed.

    Thanks

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    1. Honestly, they do and they don't. There are penalties set out for breaching the rules, but then there are rules that say that the rules and be abridged, lengthened or shortened as may be appropriate. There are also penalties for breaching court orders, but the court will only conclude that someone is in contempt of a court order with much reluctance, and a successful contempt application often requires a history of willful breaches.

      The court always strives to achieve justice and balance. Taking a strict approach to the rules' timelines and deadlines will only serve the interests of justice in rare circumstances - such as if someone has repeatedly flaunted the rules to someone's detriment. The court should cut you some slack if you got sick, or misunderstood a rule, or found a lawyer at the eleventh hour, or if your dog really did each your application response.

      I realize this can be frustrating. The approach I try to take is to: (1) observe the deadlines and timelines set out in the rules as carefully as I can; (2) call the opposing party or lawyer to ask for an extension when I need one; (3) expect the unexpected, and not assume I'm going to get a document or have a hearing heard on the date the document is due or the hearing is set; and, (4) to agree to adjournments and extensions of time when it's reasonably necessary and doesn't prejudice my client.

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  3. Hi JP - I had an interim hearing for child and spousal support on 8 weeks ago. The Master reserved judgement and did not give a timeframe on when to expect to hear back. I discussed with my ex's lawyer on the day of the hearing and she said that it might be difficult to hear back before Christmas because of the holiday schedule. It is now almost February and nothing has happened. I called the registry this today and was told that judges and masters were very busy and it could take 6 months to a year to get the ruling. Is there anything that can be done to speed the process up? The application was urgent 8 weeks ago and legal actions are now being started against me for outstanding debts.

    Thank you

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    1. Really, all you can do is call the court registry to ask when the decision might be released. That's the best that can be done. The court tries to prioritize family law cases over all other cases than criminal cases, and judges and masters only have a limited number of days set aside in their calendars for writing judgments.

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  4. Its a very difficult process as the judge may pressure you to pick and choose what you can talk about then Judge will not choose what you talk about ..... its rather confusing process. The real problem is if your trying to be honest and your dealing with a dishonest lawyer that will lie there head off (In other words try to decive the court) As a self litigant find it to be very confusing. And difficult to know what to respond too and what not too speak. And to find competent help. We call this justice.
    It is a sad system and you can get lost in this system. Even abusive a war of costs. Judges don't know how to deal with self litigant some do. I would rather get yelled at put in order and get what I came for then get given more credit then I deserve. When the system fails who should we blame I say its the judges they are the last line of defense. On a human level sometimes you know what is right you know what should be done but you don't know the law. A judge should read that. Simply because you don't know that law does not mean you should not have justice. Simply because you don't know proper behavior does not mean you should not have justice. Family law is about the child not about the law. But all too often Lawyer school people on 10 things they did wrong and not the 5 serous offensives that they did wrong. When a lay lay litigant makes a mistake they are sorry. When a lawyer makes a mistake they are mad you caught them. The law the law. Doing things according to law does not make it right. Doing what you believe to be right sometimes needs to super-seed the law. if that makes sense. If there are so many lay litigant in the courts why don't we have a voice to speak to judges and tell them what we think. We are paying taxes but we have no voice. There never enuf judges on duty we have no voice. We are pressure to Finnish in unreasonable short amounts of time. We are pressured to be fast undue stress. How can you think under that kind of pressure. And then have a lawyer oppose you and push you to react in front of the judge. Sharp and poultry practice. There no fine lawyers behaving bad in court. And I'm sure judges could be harder too on lay litigant but the truth is we never know what we did wrong in the first place.

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  5. Dear JP,

    If a Claimant/Recipient whom has filed for Child Support Variance Over the Age of Majority Retro-Active and Continued; has not claimed a Dependent on their Income Tax or to BC Income Assistance (Receiving PWD /Single with No Dependent) for a couple of years prior to the "Child of the Marriage" becoming the Age of Majority and even after Age of Majority; how could their Claim possibly be accepted in BC Supreme Court as valid? If a person does not Claim a Dependent to those Government Institutions then how can they then Claim a Dependent in Court?

    Any insight you may provide would be greatly appreciated.
    Thank you.

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    1. I can only speculate on what's going on for your ex, but if your ex has in fact has the child in his or her care for most of the time, that's often enough to trigger a child support obligation. It really doesn't matter what he or she has been telling the Canada Revenue Agency, and it is not the responsibility of the court to verify the facts set out in a claim against how the person may have characterized those same facts to the government. It may, on the other hand, let you argue that he or she is being less than honest.

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    2. Dear JP,
      The Payor has been paying Child Support consistently for the last 21 years. The Claimant came back after 16 years (w/o reasonable excuse). Respondent has numerous incidents of evidence (a paper trail of events) to prove Claimant filed for Variance out of Vindictiveness. The so-called Child of the Marriage was already in a parental role (now has two children) and resides with a common-law wife, prior to Claimant filing for Variance. There are Many more facts in this case to show Retro should not be awarded. It would maybe be an interesting case for someone like yourself to review, as many people believe it sets a precedent.

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    3. HELP... In my situation i was defending my mother in a petition unlawfully asking for a court nominated Committee appointment to a EPOA who acted in contrary to her feduciary dutie was thus legally removed by way of EPOA revacation, who the to get arrounf having no lawfull authority and no longer in trust saught committeeship using the adults money to pay for the Lawyer only because they wanted to sell the adults home defraud them after already breaking several if not all laws. I hadto move home to fight for my parents rights, had no access to their money, was granted EPOA, but did not use it untill absolutely necessary, had a representation agreement section 7 and a PPA Nomination of committee s 9,. a year prior to the Petition. I do not have identification nor was their enough time to get identification in order to have by documetation sworn in as evidence, the Petitioners lawyer, also stated several times that they would not accept unsworn evidence, nor would they allow for adjournment. Court day, petition was set for 90 minutes, then the Judge said that there was only 40 minutes, The lawer succeeded in having all my evidence struck from proceedings, even after stating to the Judge i was unable to comply with the rules of cour and it was beyond my comtrol, the Judge basicaly said thets your problem. The Lawyer submitted a writen argument that was 25 pgs not 10 in length , Lied, changed information, defamed my character to the point that i was an elderly abusing self seeking drug adicts who only cared about what i could bleed out of my pooor mother. (when it was only I who was protecting her ) Accused me of stealing her money,.. when i said that i never had access trying to get a word in the judge responded " yeah, it wasnt your mother at the at the liquor store.....) when it was actualy my tern,knowing that the lawyer had left me no time to defend myself or my mother, I stated that i did not have enough or even a fair amount of time to defend... The judge said "well you better start then" he smirked when i said i love my parents, and kept looking at the time, I knew i was finnished, when i had a 10000% case of fraude etc.. the judge then appointed the person who abused my mother to begin with as full Committee of estate and person without bond or security in contradiction to the PGT's recomendation........

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  6. Can the opposing party's lawyer decide not to speak to an individual(the self represented litigant) about the family court matter, because the individual used non prejudice documents they had sent to the self represented person in an affidavit??

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    1. An opposing lawyer can never refuse to communicate with an opposing party who is representing him- or herself. Lawyers are under a professional obligation to communicate when necessary — although I can see a lawyer asking that all communication is in writing — and cannot just decide communicating and unrepresented opposing party, whether they're annoyed with the opposing party or not.

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    2. I sent 7 emails between march 15 to present to my ex's lawyer asking if he would catch up voluntarily with child support payments and recieved only one email back requesting statement from FMEP and then nothing . We had a court date that did not get heard due to courtroom over booking ? When i asked her about support she acted like she never recieved them . A week ago i sent one asking for her acknowledgement of it and still no reply ! Does she have to reply ? We agreed to try to settle this out of court but that i needed him to first catch up with payments . It seems they are the ones that are making this go on and on . He hadnt even filled out a financial statement for court . I know she is not my lawyer but should she respond ? And try to settle this ? They are ignoring me

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    3. Lawyers have a duty to respond to communications reasonably promptly. We can rarely do that the same day, sometimes not even for a couple of days, but we do have a duty to respond. You can file a complaint with the Law Society if you wish. There is no fee charged to make a complaint and you do not need to have a lawyer to make a complaint.

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  7. Hello - I am a self-representing litigant after having run out of financial resources to have my lawyer represent me. Unfortunately, I owe her money for some of the file work she did. I have a court date in two weeks and I have asked her to release my affidavit exhibit materials, as I will need these when I appear in chambers to speak to the judge. She is refusing to provide these materials. I believe that regardless of whether I have an outstanding debt to her firm, I am entitled to these items - are they not my property? How should I proceed?

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    1. You should cal the law society in your province right away to get some clarification about what the lawyer can keep and what she can't. The law society is there for your protection and interests, NOT those of lawyers.

      I suspect that your lawyer is asserting a "solicitor's lien" over your file, which normally means that the lawyer won't release her file to you until her bill gets paid, as the file contains her work product. You should be able to get copies of all of your affidavits from the court registry, but you may need the originals for trial.

      You make a good point that some of the evidence used as exhibits is your property. I'm honestly not sure whether she's entitled to hang on to that to secure payment of her fees, and you should call the law society, as soon as you can, to find out.

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