Incarcerating Self-Represented Litigants for Overzealous Advocacy

Incarcerating Self-Represented Litigants for Overzealous Advocacy

The question I am asking in this blog is a simple but shocking one. Should we be imprisoning self-represented litigants for objecting to and even resisting particular outcomes – in short, for being overzealous advocates?

This is far more complex than a simple legal question. We know that the law of civil contempt allows for imprisonment where a court order is breached. The question posed here is a much harder one. When an individual advocates – non violently, but zealously – in a way that expresses their resistance to an outcome pronounced by a judge, how is the seriousness and consequence of that resistance appraised? For example if a parent in a custody case is required to “co-operate”, how is that measured? Isn’t this a highly subjective assessment?

The nature of this assessment becomes extremely important when a judge determines, as a judge did two weeks ago in British Columbia, that a civil contempt has been committed by a family litigant which should be punished with imprisonment.

Victimization or the rule of law?

I hope I am not alone in finding the decision of Mr Justice Neill Brown to send Ms A (Mom) to prison last week (M.W.B. v A.R.B. 2015 BCSC 941) absolutely shocking. This was the culmination of five years of acrimonious litigation over children (now older teens) and money. This decision makes Ms A the victim, on the application of Mr B (Dad), with the sanction and complicity of the justice system.

In 2013 (when I first became aware of this case) Ms A resisted the relocation of her teenage son (B.B.) against his stated wishes – and advocated in a way that was judged to be disrespectful or defiant of the court’s wishes. In fact, the relocation never took place – having told Justice Brown that he did not want to move, leave his school, friends, older sister and mother, B.B. managed to negotiate between his warring parents. The upshot was an agreement between his parents that he would stay where he was, on condition that he and his father had counselling and that he visited with his father in Vancouver.

By the time the residency of B. B. was negotiated, Mr B had applied to the court for Ms A to be held in contempt of various elements of their joint custody arrangement and asked that she be sentenced to a prison term.

In sentencing her to a prison term on June 3 2015, Justice Brown referred to Ms A’s “strident opposition to this order ever coming to fruition” (para 111). For her opposition to the relocation of her teenage son against his wishes, Ms A was held in contempt and subject to punishment. Is this an “offence” that we are comfortable with punishing with incarceration? If a lawyer “stridently opposed” an order that they believed to be unfair and unjustified, wouldn’t they just be doing their job?

Justice Brown also found Ms A in contempt on a variety of other highly subjective matters, including that she “refused to respond in a reasonable fashion to the yearly access schedule” (para 288), and her “misleading of the children about the litigation” (para 114) (the guardianship order including a prohibition on discussing the litigation with the children. The children are now almost 18 and almost 16 years old. The children became aware of their father’s applications to have their mother imprisoned when Canadian Lawyer covered the case in August 2013, and their father sent them the article: http://www.canadianlawyermag.com/4753/An-expansive-interpretation-of-family-violence.html).

Justice Brown also made a series of orders over the last few years for “additional costs” against Ms A – who could not afford legal counsel – for up to $30,000, persuaded that Mr B – who also represented himself some of the time, at other times represented by counsel – had suffered financial hardship as a result of Ms A’s behaviour.

Descent into the abyss

Let me be clear – I am neither defending nor promoting any particular individual’s actions or behaviour in this case. Having read many but not all of the associated judgments, it is obvious that everyone involved in this case, like any long-running family conflicts, made mistakes, exercised poor judgement, and reacted emotionally in ways that negatively affected others.

Some might argue that this is a case of “parental alienation (a concept about which social scientists have profoundly different views). I am not in a position to judge this, and neither are you. But even if it were, is this the way to deal with it?

But what I can say is that is that if we have reached the point that our justice system is so broken that we have to resort to the incarceration of family litigants, based on the subjective assessment of a single justice who has clearly formed strong opinions about the culpability of the parties, we have a very big problem that should be alarming all access to justice advocates.

Judicial bias

The judgments in this case make it clear that Justice Brown is clearly extremely angry and frustrated with Ms. A., and very favourably disposed towards Mr B. I understand, of course, that a family court judge must form a belief about credibility in extraordinarily acrimonious family conflicts. Such evaluations will inevitably inform decision-making, but there need to be procedural safeguards to ensure that this does not undermine a fair and balanced adjudication of ongoing issues. And there need to be special additional safeguards (perhaps review by a different judge) before a parent can be incarcerated for contempt.

We have seen this particular pattern before at NSRLP. A self-represented litigant can become infuriating to a judge who sees them over and over again. The judge appears to have developed an extreme personal dislike towards the individual litigant. Everything that one side does is perceived as evil, and everything the other side does is perceived as exemplary. This a problem not only of access to justice but of fundamental fairness, whether a litigant is represented or not.

Also last week, a long-time SRL was successful at trial on a custody issue before a trial judge. For four years she had been heard by a single (another) judge and had lost every motion (and all access to her kids). When a case becomes this distorted, it is time for the judge to recognize this and recuse him or herself – or bring the administration of justice into disrepute.

Taken to jail in shackles

On June 3 2015, Justice Brown sentenced Ms A to be incarcerated for 30 days, 15 days suspended, followed by 90 days probation. She was transported to a prison the other side of the province in shackles, where she remained until the end of last week.

We applaud and reward lawyers who practice zealous advocacy. We train them to do this at law school.

When self-represented litigants – perhaps ineptly or obsessively but authentically – practice zealous advocacy, we imprison them.

Something is profoundly wrong here.

On a different issue, the same question

In a second B.C. case last week, the Law Society of British Columbia asked a judge to sentence a 74 year-old man who has been collecting small fees to help SRLs draft and file documents. This was the latest in a series of actions brought by the Law Society of British Columbia to restrain him from “the unauthorized practice of law” (see for example Law Society of British Columbia v. Bryfogle 2012 BCSC 59). In this case however Justice Victoria Gray refused to order incarceration and instead imposed a suspended sentence (http://www.vancouversun.com/news/forbidden+from+filing+legal+documents+never+been+lawyer+judge/11137896/story.html).

Can we agree that incarcerating self represented litigants, or those who assist them, even if they behave unwisely or inappropriately in pursuing their sense of justice is not what the justice system is for? This is not why so many of us work in the justice system. And I do not believe that it is what Canadian citizens are asking for when they trust the courts to dispense justice, keep order and enable access to justice for those who would advocate for themselves.

 

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Comments (18)

  • Allen Reply

    the safeguard should be for all litigants not just family law litigants. It is becoming too regular for judges to send litigants in civil cases to prison.As a SRL, I find the judges resorting to intimidation and often they use tactics of provocation for SRLs to do something silly for which they can throw them in jail. I just filed a written complaint to my Chief Justice about some very rude judges and even those corrupt ones. In fact I wrote tot he CJ telling him I am writing to the premier. The half is yet untold about these judges

    Not only do they abuse litigants by unfairly jailing them but they financially uses too and that is ROBBERY. It must stop

    June 23, 2015 at 4:48 pm
  • Diogenes Reply

    I think it is wonderful that finally a woman gets jail for lying in family law. Men have been jailed on the word of lying mothers and now it is sauce for the goose.
    Hope her sentence includes flogging

    June 23, 2015 at 5:15 pm
  • Cheryl Watson Reply

    If judges were equally applying contempt charges across the board it would not be a stretch that SRL’s will occasionally receive the same treatment. It appears that judges will only act if a particular person is fraying on his/her nerves and not because it is the right thing to do and appropriate to the circumstances. Many, many social workers in child protection cases defy court orders without cause from family court judges and nothing is ever done. It is common practice in an area of NS for social workers to instruct police to NOT enforce custody agreements. So, if the goose is free to show contempt then leave the gander alone as well. I, myself, received an email from the NSBS advising me to stop practicing law or I may face prosecution.

    June 23, 2015 at 5:35 pm
  • twechar Reply

    Another shocking story on how Judges use and abuse Judicial Discretion,Judicial Deference,Judicial Independence and Judicial Immunity. One just has to look at another appointed Branch of Government (The Senate) to see what absolute power does to individuals.There is indeed something seriously wrong here, the “rule of law” is totally non-existent through the eyes of many Judges across the country and they rule according to their rule of law. “Objectivity” “Impartiality” and most of all compassion are obsolete. This particular case falls under a violation of the Charter of Rights and Freedoms to any reasonably minded person.

    Treatment or punishment

    12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

    June 24, 2015 at 4:11 pm
  • sudokutea Reply

    In history, the winners write the story. In courts the judges write what they want the world to see.
    Sure the woman’s conduct was inexcusable – but jail time?
    Lawyers and judge’s do worse damage on a daily basis – and none of it may make it into the final record.

    June 24, 2015 at 6:52 pm
  • jackiebyrn Reply

    A lawyer took my case on in 1983. My initial 1983 SCBC appearance resulted in a monthly support Order(Justice Finch) for $4,000.00. Key evidence as well as information about my professional status, property assets, corporate assets and media connections was blocked. Pivotal documents were withheld and all support payments ended while evidence against me mounted. No lawyer would represent me and legal aid was denied. In 1999 I was arrested by VPD due to profiling error. Now, decades later, with the assistance of Status of Women Canada, my matters have been identified as personal information errors. The staff at ATIRA Women’s Resources Centre(legal advocate, law students, clinic lawyer and retained lawyer)have brought my case to a point where the chaos, created by my 1983 lawyer, is now managed. The problem we have identified is systemic and appears to have affected countless female litigants. Amber Prince at ATIRA Women’s Resources Centre is the contact person. Ms. Prince is assisting me reignite my 1988 complaint to the Ombudsperson. Ms. Prince’s associate the ATIRA clinic lawyer is assisting me reignite my previously dismissed College of Psychologists complaint against an expert witness who determined that I was paranoid and delusional. The College has written to me with notice that they will accept my complaint submissions and fresh evidence of investigation error by two forensic psychologists involved in custody matters. Meanwhile I have begun workshops which will enable me to move from print to film work. My intended project is a film with the working title “Recipe for Justice”. I have been given media clearance to film inside The Law Courts at 800 Smithe Street, Vancouver. My publications, affiliations and awards are published at my national website http://www.writers.ca I would encourage all litigants who have been handled by police either detained or kept in jail to make an FOI request for all film records while in custody. It appears that Status of Women Canada is correct in determining that information and privacy matters have affected me and most likely countless other female litigants

    June 24, 2015 at 6:58 pm
  • Karin Litzcke Reply

    It seems to me that a clear understanding of why judges respond as they do to SRLs is only to be gained with a clear schematic of the forces acting on judges under normal court conditions, when their behaviour is, by and large, not just unexceptional but excellent.

    Judging is, in the language of behavioural analysis, an elite group in a high performing system. Such groups perform at elite levels not just because they are smart or talented, which judges unequivocally are, but also because conditions around the group are created that predispose to excellence and sustain it. These conditions are not always pretty. Such groups are, for example, always exclusionary. You and I cannot go and skate in practice with the Canucks. They are also strongly hierarchical. Thus the excellence of the Tour de France lead riders is enabled by a team riding to control the peloton and the services of domestiques who subjugate their own ambitions to assist the team star. There are high barriers to entry, hence law degrees, hazing rituals, sleepless nights for medical interns, and what have you. There is also an inevitable internal dynamic in a high performing system that is harsh, perhaps competitive, maybe even bordering on the abusive or punitive.

    As we strive to build a softer, prettier world of purported equality and beneficence for all (pardon my cynicism here), we regard these attributes of high performing systems with increasing alarm. We begin to challenge and dismantle some of the elite group infrastructure because we don’t like it, but all too often we do so without fully understanding what each infrastructure element supports. Sometimes, we inadvertently remove structural elements that play crucial roles and without which excellence cannot be sustained.

    The relationship between judges and lawyers/lawyers and clients engages a complex dynamic that I am not sure has ever been fully mapped. Clearly, the forces in that dynamic are entirely different when the client his/herself steps into the courtroom and speaks to the judge on his or her own behalf. In effect, the entire support structure that supports judicial excellence has just been stripped away. Some judges can function identically with or without that invisible infrastructure. Other judges cannot.

    I’m a behaviourist by training, but until I stumbled into the legal arena had never encountered such a clear body of language for describing behaviour as the law offers. So as I try to map this dynamic (both to chart my own course as an SRL and out of intellectual curiosity) I find that whenever puzzling behaviours crop up in the context of the SRL phenomenon, however tempting it is to yield to opinion and emotion in responding, the path toward greater clarity is always offered by invoking the language and concepts of the law itself. And the legal concept that I think is particularly useful here is “duty.”

    The job of judging is poorly understood by laypeople at the best of times, and perhaps it is also poorly understood by lawyers. (I’m not here to claim that I understand it, but to claim that understanding it is crucial to making SRLism work). It’s my guess that there is a large body of discussion and literature within judicial circles about what the duty of judges is, and how that is properly carried out. But one aspect of judicial duty that is particularly rarely articulated (I have seen only one reference to it, I think) is the duty of judges to supervise lawyers.

    It does not spring readily to the eye, but it seems to me that in the courtroom, a large part of a judge’s job is akin to refereeing. Each lawyer has a duty to his or her client as well as a sworn duty to uphold the law, or the rule of law. To a large extent, the courtroom procedure is a jousting match between lawyers, both armed with ostensibly equal knowledge of law, and both bound by duty to their client (which includes not financially milking them) and their duty to the law. The judge functions as referee during the match and monitors the lawyers’ execution of their duty, and then functions as judge once it is over. I believe that some of the tales we hear of judges responding harshly to lawyers are in the context of the refereeing role. But it’s key here to note that the judge is determining a winner, not scoring a performance against an objective standard.

    When one (or both) of the lawyers is removed and replaced by the client him or herself, the nature of the courtroom process changes, and the job of judging changes. Rather than refereeing a jousting match, the judge is judging an individual performance, as in figure skating perhaps. It’s my premise (and I take this from my own evolving mindset) that most SRLs go in planning an individual performance and are caught off guard by being jousted with; I think we expect to be evaluated on our merits and not on how we thrust and parry. But then when we do thrust and parry, we do so not in the context of a duty to a client, but on our own behalf. It’s my belief that the same tactics look entirely different to a judge when employed by a client vs by a lawyer for the simple reason that they are not a matter of duty, but of self-interest.

    We cannot pretend that facing an SRL is not frustrating for judges. Judging overall is likely a very stressful role. It’s my belief that some of the tension that is addressed in the referee role cannot be relieved as productively with an SRL and is thus vented, sometimes inappropriately, in the judging phase.

    Courts have by and large accommodated the influx of SRLs with real aplomb. Say what you will, not many highly bureaucratic systems have as readily and as skillfully adapted to as significant a change as SRLs represent to the courts. As far as I can perceive, the change has at least three distinct levels: it challenges the court system, but also the law itself (because cases and perspectives can be brought that could not get through the lawyer filter before), and also the business of law. Of the three, the slowest one to adapt (as far as I can tell) has been the business of law. It is the first instance I can think of where bureaucracies have responded faster than private enterprise.

    But the court system has two elements: the front office function, and the judge. It may be that the cost of this fast adaptation has fallen unfairly on the judge. Of the two, the front office function does not face as substantive a difference between lawyers and SRLs as judges do. For the front office, if the forms are filled out and the fees paid, the change requires more orientation before processing, but is not transformative. But for a judge, the difference is far more subtle, but far more complex as well; I venture to say the task of judging an SRL case is entirely different. And I think we do judges an injustice if we judge their performance harshly without understanding what the significance is for their work of the substitution of client for lawyer before them.

    Therefore, I think it is of more assistance in managing the SRL phenomenon to closely examine not just what happens to SRLs, but to carefully study what forces are in play when SRLs are not in the courtroom. If we understand better what dynamic we are disrupting, our expectations of judges can be reasonable, and we can ensure that they have the supports they need (including feedback loops) to continue to perform at a high level without the protection of an elite system around them. This, in turn, puts SRLs in the best possible position to achieve justice.

    June 25, 2015 at 7:07 pm
    • sudokutea Reply

      smart and talented??? judges unequivocally are? Excellent behavior?
      Please remember a few judges have been “defrocked” to put it kindly. Assuming you meant only the judges that have not been sanctioned – you seem blind to the MANY MANY judges who do not listen to the UNrepresented, or provide them ANY opportunity to make meaningful representations. I have had very excellent judges, who have shown respect. Unfortunately too many have not. How can a judge say this “Why must your wife also sue(in her own right)? Why do you not sue in her name?”

      June 25, 2015 at 8:15 pm
  • Robert Reply

    So lets see…A judge ordered me to put my children on the benefits and I defied the court order because it made no sense. (I offered to pay out of pocket for any expense her benefit plan does not cover) This makes the Judge the criminal not me. On the same order, the Judge was obviously illiterate and couldn’t read a form and ordered too much child support. Unfortunately it went through the FRO and I couldn’t defy that order otherwise I would have. Now I have overpayed child support by over 4,000 dollars and just filed a motion to change in June 2015. A better question to ask is why are not all these lawyers and judges in prison?

    July 2, 2015 at 2:09 am
  • Delmer O. B. Martin Reply

    I loved reading all of your blogs. After my experiences with the system over the last 30 years lets just say I am a “happy farmer” now. (animals often have better morals than many of our so called leaders and public servants nowadays) It is a fact that animals are more transparent/honest)

    I am only writing to warn you that one of the most evil and deceptive things that those “in power” do is “make the people busy” with in-fighting (party-politics and male vs. female and race, class and other division) mindless entertainment and so on. They even have a definition for this It is called “cloward and piven” Specifically re; our court system and SRL etc. we must NOT get sucked into the male v female debate. This was created only to cause an evil division…and to keep us from the truth. We MUST focus on getting to the truth. Also please do not forget that in a democracy the 51% can force the 49% to do their will. I have always liked the analogy of the 2 wolves and the sheep having a “democratic meeting” and having a vote on what will be served for dinner. (obviously things will never end well for the sheep) It is a fact that the so called middle class in our society is under siege and our system(s) are being taken advantage of by the remaining citizens.

    For all of you that think more funding or tweaking of the rules or more tyranny etc. will fix things…GOOD LUCK. I do NOT like to have to say this, but our system(s) need to be turned upside down AND inside out; for we the people to get served. (For years now I have simply been asking “who is serving whom?” I do not wish to discourage any of you who are so much smarter and better educated than I am…I just beg for you to seek the truth FIRST and then stay focused and never give up. Some of the most miraculous and good things that have happened in our history was due to less than 1% of the population being behind it. We “the people” must never be silenced OR co-opted. We must always seek the truth AND resist evil with all our might and be truthful and the truth will make us free. Truth=FREEDOM

    July 22, 2015 at 4:47 am
  • Katya Keen Reply

    Dear Karin….I’m Katya, an SRL in BCSC..going into my 5th yr of a civil case against 4 corporations. To date, what you’ve written here is the most helpful for understanding my positioning..that I’ve heard 🙂 It’s brilliant clarity… I thank you immensely.

    I’ve been alone for 5yrs..learning thru copying the defendants, and doing nothing when I knew nothing.
    I’m now experienced enough to relate to what you’re saying.

    How you think here is precisely what I’m contemplating often…only not with your clarity of description.
    I very much want to know more about you and how to connect.
    Thanks..I’ll google you now..and hope you respond here.

    Cheers,
    Katya

    August 20, 2015 at 1:14 am
  • Karin Litzcke Reply

    Katja, I’m glad to hear my musings are helpful to you. I too find it’s easier to navigate experiences that one can make sense of somehow, and for me that is enabled by communication with other SRLs and about the SRL phenomenon that the NSRLP provides.
    You can likely find me on Twitter, or my email address is my name, with a period after the first name, at telus, extension net.
    (I don’t know if spiders still crawl the web harvesting email addresses but I’m conditioned not to post an email address in full :-))

    August 24, 2015 at 6:25 pm
  • Karin Litzcke Reply

    Oops, spelling: Katya!

    August 24, 2015 at 7:34 pm
  • Amy Hughes Reply

    I did some research on this case. It is very interesting some of the details once you start digging.

    There were some striking similarities in Ms A’s conduct in her Bankruptcy, to the family law case you cited. I understand she was fraudulent with her creditors and completely took advantage of financial institutions. http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc502/2015bcsc502.html?resultIndex=1

    January 30, 2016 at 4:47 pm
    • jackiebyrn Reply

      re:  overzealous litigant’s bad behavior/canlii summaryIt may not be wise to accept as fact everything that is published on canlii.orgIn my case misinformation accepted as factual evidence was compiledover several decades.  Only now(I started in 1982)am I sorting throughthe mess and correcting massive personal information error.Jackie Byrn

      February 8, 2016 at 12:17 am
      • Delmer O. B. Martin Reply

        In addition 1. some cases do NOT get published at all. 2. Professionals have errors and omissions protection…Clients do NOT! 2. judges can and do reserve the right to edit their own judgements. When a justice loses his temper at trial against one of the parties and issues a verbal judgement and reasons and takes off into chambers, just before the exit they will say that they “reserve the right to issue more fulsome written reasons” and oh my, oh my, you should see the “edits” in a case like this. A single finding of credibility against one in a lower court has less than a one percent chance of getting overturned at even the best appeals court and yet in the very same case when a law firm is found by both the lower court and the higher court to be in “Gross Negligence of Duty and a Complete Dereliction of Professional Responsibility” … Next step, the opposing side; now a bunch of lawyers with LawPro lawyers now fully representing them simply deny what is true and what has already been found as a fact (including specific $$$$ in damages) in both the lower and the higher court and guess what, everything is allowed to start all over again. (not to worry Legislative and Judicial power struggles will not be included here/now)

        The good news is that it will NOT be some lawyer or judge who will decide when justice has been served, it will be you the Self Represented Litigant!!! It is true, Self Represented Litigants are filling up the courts and this is precisely why. FACT: The less justice that is dispensed, the more the courts will clog up.

        Judges welding the double edged sword, Lawyers speaking out both sides of their mouth, court staff that would prefer to do their jobs out of their home, the massive competition between Rules and Procedures VS All the Paperwork. Did I forget anything? of course, the clients and SRL.

        Personally I was only forced to be a SRL for a few months out of a 10 year litigation so far, however since I as a SRL was not the wisest, and or most knowledgeable, and or most well educated or the wealthiest and not the most privileged person in the courtroom, why am I getting blamed for anything? Oh wait, it must be all my fault… I am so sorry… YES I am the client!!! and in all seriousness I am TRULY SORRY! but the caveat is, the TRUTH will make me free!

        February 8, 2016 at 7:05 am
  • sudokutea Reply

    Dec 2014 unrepresented plaintiff files claim – breach of 29 Ontario statutes and “personal damages”.
    Feb 2015 Settlement Consent order requests particulars from plaintiff, agreement to abide by 1 Statute from Defendant.
    May 2015 Settlement Consent order finds plaintiff beached consent order (filed incomplete particulars), matter set down for trial, times set for documents.
    May 2015 Defendant Counsel undertakes to provide cost consequences precedents
    Aug 2015 Plaintiff files documents. Defendant files no documents or reply as per consent order.
    Nov 2015 Goliath Defendant brings motion to dismiss for delay, without any jurisprudence or precedents.
    Jan 2016 Defendant Counsel provides cost consequences precedents, 2 days before motion.
    Precedents from Rules of civil procedure regarding case management rules for breach of consent orders.
    Jan 2016 Motion order dismisses plaintiff’s claim for delay, citing conduct of plaintiff which attracts the consequences of precedent.
    Judge invites costs submissions.
    Goliath Defendant send plaintiff $19,000 fees and disbursements costs.
    Cost Considerations: Importance of claim reasonable expectations of costs, Conduct of parties and lawyer…
    Plaintiff alleges in affidavit Defendant breached at least the 1 statute in the consent order.
    Defendant offers denials and 2nd hand affidavit of “responses” to the statute.
    History: 2 years previous 11 claims by plaintiff, dozen hearings. Settled – Defendant paid $1,000 of $10,000 disbursements. 6 judges supported Plaintiff’s claims for the same “personal damages”
    Anyone have helpful costs pleadings?
    Thanks

    February 8, 2016 at 4:57 pm
  • Judy Gayton Reply December 13, 2016 at 3:14 pm

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