Skip to content

Saving Money by Going it Alone in Court? Think Again

witness

Saving Money by Going it Alone in Court? Think Again

As a family law lawyer, naturally my first recommendation to anyone who is involved in a family law dispute is that they retain a competent and experienced family law lawyer to represent them.

A called Davidson v. Davidson, offers cogent illustration of what can happen when the parties choose not to go that route, and opt instead to represent themselves. More to the point, it illustrates in virtually step-by-step format how the parties went wrong in terms of their litigation, and at what stages they could have benefitted from the assistance of lawyers hired to advance their individual causes.

The matter started out routinely enough: In 2001, after a hearing the father had been ordered to pay child support for his two children, of almost $450 per month.

The father had been properly served with notice of the proceedings and the fact that child support was being claimed by the children’s mother. However, he did not appear at the hearing and did not file any materials with the court. We will call this “Mistake No. 1.”

The $450 in monthly child support had been determined based on the court’s estimate of the father’s income as being about $30,000 per year.

Mistake No. 2: The father never made any payments as had been ordered. Over the years, he paid only a few dollars in support, and by 2009 the arrears totalled almost $45,000. He claimed – with relatively little corroboration – that this was due to the fact that he has been unemployed since 1998, and has suffered significant depression since that time.

In 2008, the father asked for an order to vary the initial order, specifically to reduce it and have any arrears rescinded. That request was dismissed.

Mistake No. 3: Neither the father nor the mother had legal representation at the motion to vary. However, the mother was at least in attendance, though she did not file any materials. She did, however, make certain unsworn statements of fact and some submissions.

Indeed, the only sworn evidence on the hearing was certain uncontradicted affidavit evidence from the father, indicating that:

• in 2001 the father had been convicted of fraud relating to the matrimonial home, and had been sentenced to prison for two-years-less-one-day.

• since 1998 he had twice been committed to a mental institution, he had problems with his driver’s license, and had spent time in jail.

• at the time of the hearing, the father’s only income was $1000 a month in disability payments.

Despite this evidence, the motions judge dismissed the father’s application to vary, writing as follows:

The respondent’s actions have been completely irresponsible and in keeping with the Axis 2 diagnosis presented by a psychiatrist in a letter dated April 28/08 he is not entitled to any relief with respect to arrears. I trust that FRO will continue to enforce them. I am not satisfied that his income has changed. Motion dismissed. …

The father appealed that ruling.

At the appeal hearing, the father had now availed himself of legal representation. (And the first thing the father’s counsel asked, was that the court permit him to bring forward some fresh evidence. And – even though strictly speaking it did not meet the test – the court allowed it, partly because the father had not been represented at the earlier hearing and did not appreciate the need for or the significance of the evidence he now sought to introduce.)

With this new evidence in hand, the specific issue for the Appeal Court was whether the order refusing to vary the earlier support order was wrong, in the face of the uncontradicted evidence that the father had no income other than the undisputed $1000 in disability payments since 1998. In other words, the only sworn evidence before the earlier court was the father’s – and it indicated that his income was $12,000 per year, and not the $30,000 that had been used to impose the original support amount on him. It was incumbent on the lower court to explain its refusal to vary and not forgive the arrears in light of that sworn evidence.

The Appeal Court found the lower court judge had erred, explaining as follows:

It appears to me that what happened here was that the learned Motions Judge accepted at face value the comments of the [wife] that the [husband] had in effect cheated the [wife] in connection with the house proceeds and her entitlement to an equalization payment. Accepting those facts, he felt it was not a case for variation, nor for rescission of the arrears.

This highlights the danger of judges simply accepting what unrepresented litigants say without insisting that their version of the facts be in an affidavit, leaving them open to cross-examination. …

No conclusion need be reached on the matter of the house proceeds. The point is that the Court, in a contested matter should proceed only on the basis of the evidence before it – not the untested or unchallengeable informal statements of fact made by a litigant.

The Appeal Court concluded that the only evidence that should have been considered – and that it could now consider – was the uncontradicted evidence brought before the court by the husband. It was not entitled to consider the wife’s unsworn statements.

This being the situation, it was a clear case for a variation of child support, both retroactively and going forward. The court accordingly reduced the monthly child support amounts from $450 to $161 per month, and reduced the arrears from almost $45,000 to $15,000.

So what did the decision to not hire a lawyer really save these parties, and the father in particular?

Turning my trained legal eye to the scenario, I see that the father prejudiced his legal position by opting not to have an experienced lawyer pinpoint various evidentiary and strategic points. Namely:

• the significance of the notice of the hearings, or what the ramifications might be, if the father did not attend.

• the importance of attending the hearing, and availing himself of the opportunity to file any materials.

• not appreciating the potential repercussions of a failure to pay support as ordered.

• not understanding the significance of his unemployed status and its effect on his child support obligations.

• not appreciating the legal distinction between informal statements and sworn testimony by way of affidavit, and the rules surrounding the admissibility of each.

• not understanding the evidentiary protocol which elevated his uncontradicted evidence to the status of the only evidence that could be heard by the court.

• not understanding that certain omitted evidence should have been brought forward at the variation hearing to bolster his claim.

• not being alert to the fact that the motions judge had been considering irrelevant factors, when making his order to dismiss the father’s motion to vary.

As a result, both parties had to endure the wasted time and expense of an initial hearing, a later motion to vary, and then an appeal. … All of that to save a buck or two in hiring a lawyer in the first place.

For the full text of the decision, see:

Davidson v. Davidson, 2010 ONSC 1325  http://canlii.ca/t/28sph

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.