In a recent Superior Court of Justice Decision, the court dealt with the issue of costs associated with a divorce trial and who should pay them. The important issue of self-represented parties (i.e. a person not represented by a lawyer) was also addressed.

What Happened?

After the end of their marriage, the parties went to trial over several outstanding issues. This trial was heard over 15 days in 2015 and 2016, resulting in a 40-page decision and a 5-page relief order.

The parties were told that they could provide written submissions if they were unable to reach an agreement with respect to the costs of the trial. The court subsequently received written submissions from the wife’s lawyer. The husband, who was the applicant of this motion, was self-represented and did not provide written submissions. The court made its decision about costs based on the manner the trial was conducted and on the written submissions from the wife’s counsel.

The wife requested that the husband pay costs on a full indemnity basis (i.e. that the husband should bear all or the majority of the costs) for a total amount of $80,000 (inclusive of fees, disbursements and HST).

The issues to be determined were the scale on which costs are to be awarded and the amount of costs.

The Decision

Due to the wife’s success at trial on all the issues, the judge found that she was entitled to her costs of the trial, based on rule 24(1) of the Family Law Rules (which states that there is a presumption that the successful party is entitled to their costs). The court found that there was no basis to deprive the wife of any portion of the costs, and there was no basis to order her to pay all or part of the husband’s costs.

Scale of Costs

The factors considered in determining the scale of costs were the length of the trial, the husband’s position (which the court viewed as unreasonable), and offers to settle.

The trial was scheduled to take 3 days. The husband, whose first language is Spanish, was asked to consider requesting an interpreter for the trial but decided not to do so prior to trial.  Instead, the husband decided, at the start of the trial, that wanted to request an interpreter and did so. This delayed the proceedings and the trial was at least doubled in length. In considering scale of costs, the court noted that the need for an interpreter should have been addressed in a timely manner, before the trial began, not on the first day of trial.

In her costs submissions, the wife argued that the husband had not been prepared for trial. When considering scale of costs, the court agreed and noted that it was clear from the way in which the husband presented his evidence and responded to the evidence put forth by the wife’s counsel, that he was not organized or prepared for trial. He had to be repeatedly reminded to have multiple copies of the documents he was presenting as evidence. This failure to properly prepare added to the length of the trial.

The court further noted that based on the manner in which the husband presented his case, cross-examined his wife, and cross-examined the other witnesses called by the wife’s counsel, it was clear that he was focusing on the couple’s historical, dysfunctional relationship and historical events. None of these had any bearing on the outcome of the trial. Despite being directed repeatedly by the court to refrain from doing so, the husband focused on irrelevant, historical events. This again added time to the trial, and was a significant factor in the court’s determination of scale of costs.

In addition, the husband was persistent in arguing for sole custody of his children, despite there being no evidence to support him having full custody. He argued that he should not have to pay child support because he loved and was devoted to his children. The court noted that this argument had no merit: just because he loved his children, it did not mean that he should not pay child support. The two matters are unrelated.

Furthermore, there were three offers to settle made by the husband between 2013 to 2015. The first offer did not address the issues addressed at trial, however the latter two offers did but were identical. The court was ultimately satisfied that the result of the trial was more favourable to the wife than the offers to settle.

Quantum of Costs Awarded

The court went on to evaluate quantum of costs (i.e. the amount of costs), by reviewing the documentation submitted by the wife.

The wife’s costs were divided into Fees, HST on Fees, Disbursements, and HST on Disbursements. The court evaluated the fees for the lawyer, which was detailed and included the fees for all associates and partners who had worked on the file. The court ultimately found that the wife’s request for full indemnity costs of $80,000 was reasonable and awarded that amount to the wife.

What We Learned

More and more, people are heading to trial without legal representation, often because they think that they cannot afford a lawyer. This case illustrates the advantage of being represented by a knowledgeable and experienced family law, particularly when it comes to important decisions that may affect you in the future, financially or otherwise. Here, the wife was ultimately found to be entitled to costs due to her success at trial, which was largely due to the distinct advantage of having a lawyer represent her and argue her position. In contrast, the delays and lack of organization resulting from the husband being self-represented negatively impacted his success at trial, and ultimately affected the financial outcome for him.

In this case, the court took time to point out the conduct of the wife’s counsel, noting that it is often difficult for lawyers to deal with a self-represented litigant (like the husband in this case) because individuals representing themselves are generally not trained in the legal field and can often delay the process significantly. Here, the court noted that the wife’s lawyer had conducted herself with professionalism and civility, even in times of great frustration, and assisted the husband when she could, without affecting her duty to her client.

At the end of the day, when you go to trial, you need to have support for your arguments, prepare your documentation accordingly, and be prepared to cross-examine witnesses. While you may be able to rely on general direction from the court, or from opposing counsel, there is a limit on how much assistance they are able to provide. The best course of action is to consult with a lawyer before pursuing any legal action to ensure that you understand your rights and ensure you are not disadvantaged in any way. Many family lawyers offer free consultations, or reduced fees on some services.

The experienced and compassionate team of family lawyers at Borden Family Law has been helping clients with their family law matters for 17 years. We are committed to providing access to justice for all our clients and want to be sure that anyone that needs legal guidance and assistance from a lawyer is able to obtain it. To assist with this, we offer our client something we call “Bundled Services.”

To see how we can help you resolve your issue without breaking the bank call us at 905.576.6090 or contact us below.