When parties involved in a legal dispute go to trial, it’s often the case that the unsuccessful party will be ordered to reimburse the successful party for some, if not all, of their legal costs.  The costs associated with trials are one of the reasons more and more couples have looked to alternative dispute resolution methods to avoid the traditional court system, which cuts down on costs and the adversarial nature of litigation. Some people may think that the awarding of costs is a simple matter, but if there’s one thing that hundreds of years of case law has shown us, it’s that there are always new situations for the courts to explore. Take for example an issue recently tried before the Ontario Superior Court of Justice.

The pursuit of costs for self-representation

The mother was the successful party following a family law trial where she sought to change orders relating to a previous issue before the courts. She was seeking her costs in the amount of $124,511.88. Of that amount, $116, 342.64 stemmed from costs associated to the lawyers she hired. However, $8,169.24 of that amount was sought for a period of time when she was self-represented.

How costs are awarded

The court began by noting that subject to discretion, a party who makes an offer of settlement, but is rejected  and then obtains an order at least as favourable as what they offered is entitled to costs. In this case, both parties had made offers to settle, and the order eventually handed out was at least as favourable as the offer made by the mother. However, she had earlier refused to take part in settlement discussions which could have reduced the costs for all involved.

Following that, the court turned to the how costs should be awarded to someone who was self-represented during litigation. A 2011 decision from the same court held that successful self-represented litigants may be granted costs. In deciding to award costs to such a party, the court may exercise discretion by taking into account whether the following conditions are satisfied:

1) she can prove that she devoted time and effort to the work ordinarily done by a lawyer; and

2) that as a result, she incurred an opportunity cost by foregoing remunerative activity.

But what does “foregoing remunerative activity” mean? The court explained as follows,

A rigid approach to the interpretation of “remunerative activity” will unfairly penalize self-represented litigants who for one reason or another are not engaged in an activity for which they receive remuneration. For example, a parent who stays at home to raise children. Such a circumstance would mean that a party who is represented can litigate to the extent to which their financial resources will permit, with the assurance that irrespective of the outcome, there is no threat of a cost award against them because the self-represented litigant will never be able to demonstrate that they have incurred an opportunity cost by forgoing remunerative activity. In such an instance, it should be possible for the self-represented litigant to argue that she satisfies this requirement, by analogous reference to a remunerative activity in accordance with her skill and expertise.”

In this case, the court thought the wife should be awarded costs for her time spent representing herself. The decision on how much to award her could be approached a few different ways. The first is to look at how much money she should would have made had she spent her time working elsewhere and deducting that from how much a reasonably priced lawyer would cost. In other situations, courts have decided to look at costs without the context of having a lawyer. In this case, the court decided it did not need to choose which approach to apply. It found the wife met the criteria and accepted the amount she sought.

At Borden Family Law we understand that the costs of going through a trial can be stressful. But we also know the value of having an experienced family lawyer by your side. Our team of certified collaborative lawyers can help you identify if an alternative type of conflict resolution is best for you. We have over 17 years of experience and have taken a wide variety of approaches in helping our clients reach a resolution that is best for them, even it means going to trial. We can be reached online or by phone at 905-576-6090. Please ask us about our bundled packages and flat fees.