22 THE ADVOCATE
VOL. 79 PART 1 JANUARY 2021
individual circumstances was not worth the cost inherent in debating these
issues. Similarly, child and spousal support guidelines have, for the vast
majority of individuals with “normal bank accounts”, reduced the cost of
addressing the vagueness inherent in statutory standards such as “means
and needs”. Most ordinary family litigants do not have the means to engage
in a full forensic analysis of their individual means and needs.
Reducing the cost of access to justice requires simplifying legal standards
and reducing the number of factual issues to be addressed. The problem
does not lie only in the process for judicial decision making but also in the
extent of the tasks it is asked to undertake at law. Changes to the substantive
law (including the common law) that reduce the scope of factual relevancy
reduce the cost of addressing issues. There should at least be a continuing
effort to simplify legal standards in areas of law where cost is an issue for
the average person, such as family and employment law.
A word should be devoted to the topic of self-represented litigants, whose
numbers are reported to have increased steadily since at least 2002, “particularly
in family matters”, according to the B.C. Supreme Court’s annual reports.
A 2013 survey of 259 self-represented litigants in Ontario, Alberta and British
Columbia showed (not surprisingly) that the primary reason for self-
representation is financial in nature but also that many seek to represent
themselves because of dissatisfaction with the legal services they received.32
This, of itself, is not terribly useful since the dissatisfaction experienced by
many self-represented litigants may not be justified. This survey shows that
self-represented litigants are often surprised at the amount of time and work
required to marshal a case to completion.33 Time is a direct driver of cost and
this signals that the expectations these self-represented litigants may have
had of their former counsel may not have been reasonable.
We have intuitively known for a long time that our judicial system is too
expensive for most. All other things being equal, this should promote settlement
once it becomes apparent that the cost is not worth the effort or the
potential outcome. That is not what has been observed in family matters.
Self-represented litigants appear more likely to act on their own behalf in
family law cases than in other areas of law.34 Why would there be more selfrepresented
litigants in family cases than, say, in insolvency cases?
The lingering frustration of having to manage the judicial process with selfrepresented
litigants is often touted as a reason to encourage lawyers to
undertake more pro bono work on the unstated assumption that there are
more self-represented litigants because lawyers charge too much for their
services. We should ask ourselves whether this assumption is accurate or
whether the increase in self-representation partly results from some family