Written on behalf of Feigenbaum Consulting
In a recent Ontario decision, a court awarded costs of $150,000 to a husband in a family law dispute spanning 17 years, calling the wife “difficult”, “unreasonable” and “mentally ill”.
The couple had been battling their family law dispute in the court for 17 years. A final order was issued respecting the divorce, spousal support, child support, equalization of net family property, occupation rent and the net proceeds of sale of the matrimonial home.
The trial had lasted 10 days. The court noted the wife was responsible for much of the prolongation of the hearing and that she was self-represented.
In the end, neither party was wholly successful after trial. Success was divided, but, overall, the husband was more successful than the wife.
The remaining issue before the court was an order of costs. The wife had not filed with regards to costs. The husband had filed submissions asking for costs that totalled more than $216,000. The husband’s costs sought recovery for legal feels and disbursements.
Court Observations on Self-Represented Litigants
The court began by setting out its observations and stating:
“The proliferation of self-represented litigants in family law cases is here to stay. I suspect that there are many reasons for that: 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.
With respect to the latter category of self-represented litigants, it is time that we recognize that there are some (not most, maybe even not many) persons who can readily afford legal counsel but simply choose to act for themselves because they think that it will provide them a tactical edge in the courtroom. It will cause the presiding judicial official to go overboard with assistance, not just procedurally but substantively, or so goes the rationale.
There is nothing wrong with self-representation. What is wrong, though, is 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.”
General Principles in Awarding Costs
The court then turned to the issue of costs. It stated that the principles are:
- In deciding entitlement to costs, a court must consider the presumption that a successful party deserves some costs, consider the factors outlined in the Family Law Rules (http://canlii.ca/t/53hw5)and take into account any other relevant circumstance; and
- In deciding quantum of costs, the court must 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.
Additionally, the court must consider the purpose of awarding costs, which is to partially indemnify successful litigants, to encourage settlement, and to sanction and deter inappropriate conduct by litigants.
Application to the Case
The court found that the husband was entitled to some costs because he was more successful after trial than the wife and he had made greater efforts to settle the case out of court. Additionally, the court noted that, compared to the wife: “he was better prepared for and behaved much more admirably during the trial.”
While the case had been ongoing for 17 years, the court declined to order any amount of costs for anything that pre-dated 2016.
The court found that post-2016, the husband’s actual costs totalled just over $190,000.
It stated that between 2017 and 2018, the wife was “difficult to deal with” and unreasonable.It stated that: “She single-handedly caused the hearing to be significantly longer than it should have been.”
The court found that the wife should have accepted the husband’s offer to settle.
Overall, it found that the wife’s conduct was worthy of serious condemnation by the court. However, it noted:
“My only trepidation in doing so is that [the wife] is, indeed, mentally ill. Her family physician’s evidence at trial confirms that. I am not sure how much of [the wife]’s unreasonableness is due to her psychological issues. I am prepared to accept that some of it must be.”
As a result, the court did not award the husband the full amount claimed, but did award him $150,000 in costs.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.