BC Provincial Court adopts Support Person Guidelines

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Court
Help
04/11/2017

Going to court can be a terrifying experience, especially if you’re presenting your case on your own, without a lawyer. Many self-represented litigants find that having a trusted friend or family member with them to provide emotional support, take notes, and organize documents can be a big help. The BC Provincial Court recognizes this, and we’ve adopted guidelines to make it easier to bring a support person to court. Today’s eNews outlines our Support Person Guidelines and offers tips on choosing a support person.

Court adopts Guidelines
The concept of a support person for people without lawyers is not new – they have been used in British Columbia for many years. Self-represented litigants have identified the ability to have someone attend court with them as an important aspect of access to justice. The purpose of the Guidelines is to provide people with a measure of certainty about when they will be permitted to have a support person help them in Provincial Court, and the scope of that help.

As part of its efforts to improve meaningful access to justice for self-represented litigants, the Provincial Court of BC has developed and adopted Guidelines for Using a Support Person in Provincial Court. The Guidelines make it clear that the Court welcomes support persons to provide quiet help to self-represented litigants in civil and family court trials, although individual judges may decide that a support person’s presence would be disruptive or unfair in a particular case.

The National Self-Represented Litigants Project (NSRLP) has promoted the use of support persons in Canada as a significant aid to people struggling with all the challenges of representing themselves in an unfamiliar system. They have called for a “clearer, more consistent, and more credible approach to McKenzie friends or navigators (to be) implemented in Canadian courts”. The Provincial Court of BC hopes these Guidelines will provide that clarity, consistency and credibility.

Dr. Julie MacFarlane, NSRLP Project Director, welcomed the Court’s initiative, saying:

“Legitimizing and clarifying the role of a courtroom companion or McKenzie Friend is a welcome step forward for those of us working with self-represented litigants (SRLs). Many SRLs are still unaware that they are permitted to ask for a support person in court – and others are unclear about just how to ask. Yet a court hearing is also the part of the process that SRLs are most anxious about, and having a companion to take notes and provide moral support is invaluable. The publication of these new guidelines will make the experience of going to court less intimidating, more humane, and more consistent for SRLs in BC Provincial Court. I hope that other provincial courts will follow BC’s excellent example!”

Jennifer Muller, an Access to Justice BC committee member with experience as a self-represented litigant, agreed:

“The experience of appearing before a judge and attending court without legal counsel is a very isolating and overwhelmingly stressful experience for many self represented litigants. The Guidelines for Using a Support Person in Provincial Court, adopted by the Provincial Court of BC, will give self represented litigants the much needed opportunity to have the emotional support of someone they choose to accompany them in the courtroom. These guidelines will have a positive and significant impact on the experience of many SRLs in BC Provincial Court.”

Guidelines
A litigant is a person who is suing or being sued in a lawsuit.
A self-represented litigant is one who does not have a lawyer and is presenting their own case in court. A support person is someone who sits beside a self-represented litigant at the front of the courtroom to quietly help them during their trial. A support person is sometimes called a courtroom companion or a “McKenzie friend”, referring to the name of an English court case that dealt with support persons.

The Court’s Guidelines say that unless the judge orders otherwise, a self-represented litigant may have a support person sit with them in a family or Small Claims trial or hearing to provide this help:

  • take notes
  • organize documents
  • make quiet suggestions to the litigant
  • provide emotional support
  • do any other task approved of by the judge

A litigant can only have one spokesperson during a trial, so the support person may not speak to the judge, or speak for the litigant, except in exceptional circumstances where the judge has given permission in advance.

A person who will be a witness in the trial or is being paid for their services cannot act as a support person.

Choosing a support person
You’ll want someone you can trust with the private information that may be disclosed in court, someone who will remain calm, and who doesn’t have their own agenda or an emotional stake in the proceedings. A person who has helped you prepare for court may be a good support person because they’re already familiar with your case.

Avoid a person who has a personal or political agenda, or is a member of an advocacy group. They may not put your interests first or be well-received by the judge. A person with a grudge against the other party, or who’s in conflict with them, will also not be an appropriate support person. The risk that their conflict with the other party will become distracting or disruptive during the trial is too great.

The best kind of support person is someone who will help you stay focused on the judge, the court procedure, the evidence, and the issues in your trial.

The National Self-Represented Litigants Project offers a guide to Choosing and Presenting a Courtroom Companion. See especially pages 4 to 14 for more information on choosing the right support person.

How should I introduce my support person?
When your case is called, walk to the front of the courtroom. The judge will likely ask you to identify yourself. Give your name and tell the judge you have a support person with you who understands the Court’s Guidelines. Give the support person’s name and say whether they are a friend or family member. The judge may ask the other party if they have any objection. If they object, listen to their reasons. When you reply, you can explain that your support person knows the Court’s Guidelines, knows they cannot speak aloud during the trial, and will remain calm. It would also be helpful to tell the judge why you need your support person. See pages 17 to 19 of Choosing and Presenting a Courtroom Companion for tips on how best to explain why you need a support person.

Why might a judge refuse to permit a support person?
The judge will want to hear you and understand your case clearly. However, the judge must also hear the other side and ensure that both parties feel fairly treated. Judges need to concentrate on the real issues and the evidence presented in a trial. To do this, they need to maintain control over the courtroom and preserve a calm atmosphere.

A support person can help a self-represented person stay calm and focused. But in some cases their behaviour has been distracting or disruptive. The Court’s Guidelines explain that a judge may refuse to allow a support person to sit with a litigant where their presence could be, or becomes, disruptive to the proceedings or would otherwise be unfair to an opposing party. For example, if your new partner and your ex-spouse don’t get along, the judge might not permit your new partner to act as your support person in a family court hearing because it would be disruptive or unfair.

Choosing and Presenting a Courtroom Companion suggests you let the other litigant know in advance that you intend to bring a support person to your trial. You could refer them to the Court’s Guidelines too. By giving them time to learn about support persons and decide whether to bring one themselves, you may avoid objections at the trial.

Can I have a support person at a Small Claims settlement or trial conference, or at a family case conference?
These conferences are usually private meetings to discuss possible settlement. Therefore, the Guidelines don’t authorize support people to attend them. However, the Guidelines explain that a judge may allow a support person to sit with you in a conference if you ask permission. Usually, a judge will only give permission if the other party agrees. Still, if the support person is not allowed to be with you in the conference room, you may ask the judge for a break during the conference to speak to them outside the room.

Where can I get more information?
The National Self-Represented Litigants Project has other helpful information on its website, in addition to the Choosing and Presenting a Courtroom Companion guide. Remember, however, that this guide does not cover a situation like ours, where the Court’s Guidelines permit support persons unless there’s a reason to disallow them. You can also get information about support groups for self-represented litigants from the National Self-represented Litigants Support Network.

The Court has also issued NP11, a ‘Notice to the Profession’ to tell lawyers about the Guidelines.