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Jan 16, 2019

The irony of representing yourself in family law litigation: It can cost you more than hiring a lawyer

By Adam N. Black
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Special to the National Post View original

There is no doubt the costs of family law litigation are simultaneously emotional and financial.

One of those financial costs, the need to engage a lawyer, may cause parties to be inclined to represent themselves.

While self-representation is the only option for many people due to their financial resources (a broader discussion of access to justice is beyond the scope of this article), for those with resources, the decision to self-represent may be quite costly in the end.

That is precisely what happened in a recent Ontario case, in which the issues arising from the separation of a couple were resolved after 17 years of litigation. In that case, the wife represented herself.

The resolution was reached after a 10-day trial in which Justice Conlan of Ontario’s Superior Court of Justice made a final order in respect of spousal and child support, sharing of property and the distribution of the proceeds from the sale of the parties’ home.

According to Justice Conlan, the trial was “more like a sentence than a sojourn.” The trial’s unnecessary length and complications were, according to Conlan, attributable to the wife’s conduct and her decision to represent herself.

With the issues of property and support behind them, the couple still had one more fight to fight: who would pay the legal costs? Justice Conlan directed the parties to file written submissions on the issue of costs. The determination of the issue was, unfortunately, consistent with the wife’s uncooperative behaviour, which Conlan described as trying “the patience of the Judge to a degree that is beyond description.” The wife disregarded Justice Conlan’s direction regarding costs, filing submissions that were both too long and late (the judge nevertheless considered them).

Through their written submissions, both parties pointed fingers at each other. The husband took the position that the wife ought to pay costs to him in excess of $216,000.

The wife, according to the judge, did not express her position with any sort of clarity, leaving the judge without an appreciation of how she wanted costs to be resolved. Justice Conlan noted that “some of the relief (the wife) claimed has nothing to do with costs and attempts to alter parts of the Judgment itself, such as the request for lump-sum spousal support in the amount of $50,000 to be paid by (the husband to the wife) forthwith.” The judge ultimately concluded that the wife was likely trying to advance an argument that the husband should pay all or most of his own legal costs.

Justice Conlan disagreed. In his costs decision released on Jan. 9, he made it clear: the wife’s decision to represent herself caused the husband to unnecessarily incur substantial legal fees. The wife was ordered to immediately pay the husband costs of $150,000.

In arriving at his decision, Justice Conlan noted that “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 naive 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.”

In what may be a warning to individuals who choose to represent themselves for strategic reasons, the judge noted “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,” he continued. “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. We do not have two sets of rules and principles for costs in family litigation — one for those who hire lawyers and one for those who act for themselves.”

In the end, the wife’s strategic decision to represent herself caused her to have to pay $150,000. The emotional toll of litigation lasting 17 years is immeasurable. Had she hired a lawyer, it is possible that the emotional and financial costs of the resolution of the separation could have been reduced significantly. Of course, such a result is now only conjectural.

This article originally appeared in the National Post.