Family Law
#7 - Unrepresented Party
STANDARD
Where a party is not represented by counsel, a lawyer must inform the person:
(a) which party the lawyer is representing;1
(b) that the party’s interests are not being protected by the lawyer;2 and
(c) that the party should retain independent legal counsel.3
This information should be conveyed in writing.
Reference Materials
Notes:
1. Klingspon v. Ramsay, 1985 CanLII 548, 65 B.C.L.R. 132 (S.C.).
2. Hants County Business Development Centre Ltd. v. Poole, 1998 CanLII 4993, 172 N.S.R. (2d) 393 (C.A.), aff’d 1997 CanLII 12656, 165 N.S.R. (2d) 365 (S.C.) - Duty of lawyer to advise unrepresented party that their interests are not being protected.
3. Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303. - The threshold for determining whether the agreement is invalid is low if one party does not obtain independent legal advice; Rogerson v. Rogerson, 2004 NSSF 37 (CanLII), 222 N.S.R. (2d) 324. - Minutes of Separation set aside because one party did not have the benefit of independent legal advice; Kwak v. Odishaw, 1984 CanLII 366, 59 B.C.L.R. 54 (C.A.)
Additional Commentary:
Tracy v. Atkins (1977), 83 D.L.R. (3d) 46, 1977 CarswellBC 546 (WC), [1977] B.C.J. No. 42 (QL) (B.C.S.C.), aff’d 1979 CanLII 760, 16 B.C.L.R. 223 (C.A.) - Reliance of an unrepresented party on the lawyer may result in a fiduciary duty.;
Elliott v. Hossack, 1999 CanLII 6001 (B.C.S.C.) - Reliance of an unrepresented party on the lawyer may result in a fiduciary duty.;
Paton v. Shaw, 1995 CanLII 2859,134 Nfld. & P.E.I.R. 271 (P.E.I.S.C. (T.D.) - Reliance of unrepresented party on the lawyer may result in a duty of care:
Ocean v. Economical Mutual Insurance Company, 2008 NSSC 282 - Independent Medical Examination Ordered to determine the Plaintiff’s competency to
represent herself.
Practice Tips:
Consider communicating in writing with an unrepresented party whenever possible. If written communication is not possible, consider documenting all conversations and contact.
DOWNLOADS
Related Ethics:
Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998), as amended.
Chapter 4 - (see Commentary 4.20 - The lawyer should not undertake to advise an unrepresented person, but should urge such a person to obtain independent legal advice and, if the unrepresented person does not do so, the lawyer must take care to see that such person is not proceeding under the impression that the lawyer is protecting such person's interests.)
Chapter 6 - Impartiality and Conflict of Interest Between Clients.
Definition:
The terms Unrepresented and Self-Represented are often used inter-changeably in case law.
Terms and Definitions used in Family Law in Nova Scotia
Termes et définitions utilisés en droit de la famille en Nouvelle-Écosse
Videos:
Presenting Your Case in Court — Representing Yourself in the Family Division, Supreme Court of Nova Scotia (13:18)
Your Day in Court — Representing Yourself in the Family Division, Supreme Court of Nova Scotia (10:08)
On-Line Resources
The Nova Scotia Department of Justice – Self Representation site contains information for a self represented person.
Representing yourself in Family Court Information Kits
Online family law information centre
Prepare Yourself for Court - checklist
Tips for representing yourself in court
Self-help litigants information guide
Overview - the Nova Scotia Family Court
Vue d’ensemble - du Tribunal de la famille
Overview - the Nova Scotia Family Division
Vue d'ensemble de la division de la famille
ARTICLES
Nova Scotia Department of Justice - Court Services, Self-Represented Litigants Needs Assessment Study, (March 2004)
The Law Society of Upper Canada (Legal Information and Support), How to avoid the Complaint Dealing with Unrepresented and Self-represented Parties in Family Law, (October 2008)
Cochrane, Carol / Surviving SRLs (Self Represented Litigants) (Winter 2006) in LAWPRO Magazine
A Judicial View on Self-represented Litigants, 19 C.F.L.Q. 547
No Lawyer: Institutional Coping with the Self-represented, 19 C.F.L.Q. 455.
Balbi, Lonny L., Self-represented Litigants from the Mediator's Perspective: Walking the Line, (2001) 19 CFLQ 583
Borrowing books, online help, reference questions - For all information requests, members may contact Library & Information Services by telephone at 1-866-219-1202 (toll-free) or 902-425-BOOK (2665), by fax at 902-422-1697, or by email at nsbslib@nsbs.org web: Library
Approved by Council on March 25, 2011