Court Is Critical Of Self-Represented Party After 17 Year Divorce
It might be easy enough to assume that the complications of a divorce trial end when a decision is issued. However, a recent decision from the Ontario Superior Court of Justice shows us that sometimes, the end of a trial simply leads to more issues.
A near-twenty-year divorce
The couple involved in the case received their final order for their divorce in 2019.The issues at trial included the divorce, spousal support, child support, equalization of net family property, occupation rent, and the net proceeds of the matrimonial home. It took 17 years for the divorce to be finalized, though there were only 10 days of actual trial. The court blamed the mother for the prolongation of the hearing.
Neither party was wholly successful after trial, though the court stated the father was more successful than the wife. After asking which party was more deserving of costs, the court wrote “there is no doubt that it is Ian.”
The court took some time to comment on the matter of self-litigation, noting that it’s not going anywhere. There are a number of reasons for this, including “cuts to legal aid services, the self-help resorted to on the world wide web, and (let us not be so naïve to ignore) the voluntary choice by some litigants to act for themselves because they think that the judge will be forced into being their advocate.”
The court grouped the mother into the last category of self-litigants – someone who can afford legal counsel, but choose to act for themselves due to a perceived tactical edge. This typically results in the presiding judicial official having to lend a great deal of assistance to the self-litigant.
The court stated that while there is nothing inherently wrong with self-litigation, “hijacking the proceeding at the expense of the other side (who has counsel) and then expecting mercy from the court when it comes to deciding costs” is another matter entirely.
The court stated that the principles for payment apply equally to litigants with lawyers and those without. They are as follows:
“ (i) in deciding entitlement to costs, consider the presumption that a successful party deserves some costs, and consider the factors outlined in the Family Law Rules, and take into account any other relevant circumstance; (ii) in deciding quantum of costs, remember the basic tenet that the goal is to achieve something that is fair, just and reasonable, and keep in mind the prudent expectations of the parties, and pay attention to the importance of proportionality, and assess (but do not dissect line by line) the reasonableness of the time spent and the fees and disbursements charged.”
The court added that there should be some emphasis on encouraging settlement where appropriate, and to sanction and deter inappropriate conduct by litigants, even if it falls short of bad faith.
Analysis of the case at hand
The wife filed no submissions on costs. The father sought partial recovery totaling more than $216,000, broken down as follows:
“costs charged by his former lawyer ($22,500.00), plus reimbursement for fees paid for a professional parenting assessment ($7500.00), plus full recovery of costs incurred between 2016 and October 2018 ($99,457.50), plus full recovery of costs for the trial itself ($67,910.74), plus disbursements ($12,886.25), plus half of what was paid by Ian to obtain the divorce ($1500.00 plus tax), plus (what I call) costs on costs ($4500.00 plus tax), for a total of more than $216,000.00”
The court found the husband to be entitled to some costs. He was more successful at trial, made greater efforts to settle, and was better prepared for and better behaved at trial. However, the court declined to order any amount of costs for anything pre-dating 2016. His actual costs from 2016 to 2019 were $190,438.63. The court stated the case should have never gone to trial, and had the wife accepted the husband’s October 2018 offer, she would have been better off financially, as would all parties.
The court wrote that awarding the husband the full $190,438.63 was in the cards. However, the wife’s mental illness (confirmed by her family physician at trial) resulted in a reduction to $150,000.
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