We have previously blogged about costs in family law proceedings. More recently, an Ontario court recently awarded costs of a 15-day trial to a self-represented wife whose husband had legal counsel throughout the proceedings.

What Happened?

The 15-day trial was a result of a dismissal of the husband’s motion to terminate spousal support.  The husband had wanted to stop payment of spousal support to the wife ($2500 per month). She opposed the motion, arguing there had not been a material change in circumstances in the husband’s financial situation and that his net worth had actually improved, not worsened. The husband’s motion was dismissed.

Relying on the fact that she had been successful at trial, the wife sought costs for her full legal fees, including an award of costs that she had previously pay to a lawyer who had previously represented her, as well as costs that she had incurred herself through preparing for and representing herself in the trial. Overall, the total of what she was seeking was just over $18,000.

The husband was willing to pay for some of the costs, but argued that they should, at most, be limited to the 263 the wife claimed for preparation and conduct of the trial at a rate of $18.62 (which is what she would have been making had she remained at her job). The husband objected to paying for the wife’s former counsel.

Costs Principles in Family Law

As we have noted before, costs in family law proceedings are governed, in part, by Rule 24 of the Family Law Rules, which states in Rule 24.1(1), that there is a presumption that a successful party is entitled to the costs of a case.

Rule 24(11) outlines the factors that a court will consider when making a costs award:

 (11) In setting the amount of costs, the court shall consider,

(a)   the importance, complexity or difficulty of the issues;

(b)   the reasonableness or unreasonableness of each party’s behaviour in the case;

(c)   the lawyer’s rates;

(d)   the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e)   expenses properly paid or payable; and

(f)   any other relevant matter.

There is no specific Rule that outlines costs principles in cases involving self-represented parties, such as the wife in this case, but courts have previously provided some guiding principles, most recently in a Superior Court of Justice decision that confirmed that courts will look at factors including:

  • Courts have ordered costs to successful self-represented parties who have not “foregone” work or otherwise making money to do what they would otherwise pay a lawyer to do on their case;
  • The notion that without the option of awarding meaningful costs to self-represented parties, the court’s ability to encourage settlements and discourage “inappropriate behavior” would suffer;
  • Requiring proof of lost income would disqualify certain litigants, such as parents who stay home with children, students, the unemployed, from being able to obtain costs;
  • Most courts base their costs award at least, in part, on the “time spend doing legal work”; however, self-represented litigants do not keep dockets so this calculation can be challenging;
  • Some courts have used the hourly rate of the lawyer for the unsuccessful party as a “measuring stick” to determine appropriate compensation for a self-represented party;
  • Court have considered the quality of the work performed by the self-represented party as a factor in their ultimate decision.

The Court’s Decision

In this case, the court considered several factors in making its costs determination.

Firstly, the court noted that this case was very important to the wife. If the husband had been successful, he would have stopped paying her spousal support after a long-term marriage, which would have had a severe impact on the wife’s income.

Secondly, this was a complex and difficult case for a number of reasons. It involved complicated reviews of financial materials and other facts stemming back years. The husband, who was represented by legal counsel throughout the proceedings, failed to produce relevant information in an organized or timely fashion, which increased the trial time from an original estimate of 3-5 days, to what was ultimately 15 days. In contrast, the self-represented wife did not delay the trial “to any degree of significance”. The case also involved an “extremely complex” interplay of aboriginal law and family law, and required interpretation of the Divorce Act, the Family Law Act, and the Indian Act.

The court recognized and commended the wife for conducting “an organized case and present[ing] it well”. She did her best to outline her position in a clear manner, and “the presentation of her case was very impressive for a non-legally trained self-represented litigant. She did the work of a lawyer in addition to the work expected of her as a litigant.”

The court did note that it would not be appropriate, in the circumstances to award the wife costs for her former legal counsel’s fees. However, the court further noted that it was “obvious” that the wife had spent a great deal of time preparing for this case, and “doing the work that a lawyer normally would do”, ultimately determining that she had spent 263 total hours preparing. This calculation of time included evening hours outside of court time preparing for the next day’s proceedings, time spent preparing during the gaps of time between days of hearing, and additional time spent preparing due to the disclosure issues caused by the husband.

The court concluded that the rate of $34.35 per hour claimed by the wife was “woefully inadequate” considering the nature and quality of the work she did in preparing, which was equivalent to the quality of work of junior counsel or an experienced law clerk. Instead, the court determined that a rate of $100.00 per hour was reasonable and appropriate.

The court additionally allowed the wife an extra 50 hours for legal preparation done before trial, for a total of 313 hours.

After taking into account some minor deductions, the court awarded the wife a total of $30,000.00 in costs, concluding:

Litigants cannot and should not assume that if a party is self-represented that they will not bear the consequences of a significant cost award in the litigation in the appropriate circumstances if they are unsuccessful.

If you have questions about cost consequences in family law cases, including the potential costs consequences to you if your spouse is self-represented at any stage during the proceedings, please contact Windsor family lawyer Jason P. Howieonline or at 519.973.1500.