“Rough Justice” at Court:

In a recent B.C. case dealing with property issues, the wife was represented by legal counsel but the husband was self-represented.  The husband’s financial statement disclosed only his current debt and not his debt at date of separation.  At trial, the husband did not testify as to his financial situation on date of separation but he made submissions at the end of trial providing details regarding his financial situation that did not appear in his financial statement.  The judge acknowledged that this additional evidence was technically inadmissible as counsel for the wife did not have opportunity to cross-examine the husband the details that he later provided in submissions. Nevertheless, according to the judge: “…as often happens in family law cases involving self-represented litigants the court must resort to “rough justice” that includes a relaxed approach to the technical rules of evidence.”   Such a relaxed approach to family law litigation and the application of “rough justice” where self-litigants are common place makes the outcome that much more unpredictable.  In Ontario, mandatory mediation is required for most civil cases initiated in Toronto, Ottawa and Windsor.  The objective of this mandatory mediation is to facilitate early dispute resolution, reduce litigation costs and alleviate court burdens.  It baffles my mind that there is no mandatory mediation in family law matters.  As a mediator, I am compelled to screen prospective candidates for mediation and triage those cases that are not suitable.  This screening process could still be implemented with mandatory family mediation.