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Coming Soon to a Public Library Near You:  Help for Self-Represented Family Litigants

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Coming Soon to a Public Library Near You:  Help for Self-Represented Family Litigants

The National Self-Represented Litigants Project (NSLRP) is the new recipient of $100,000 in funds from Law Foundation of Ontario, which has a mandate to improve access to justice for the people of Ontario through a variety of grants, fellowships and awards.    The funds come from the Law Foundation’s “Family Law Access to Justice Fund,” and will be used by the NSLRP to partner with local public libraries.  Together, they will work to set up a pilot program in Public Libraries to serve the needs of self-represented litigants.

The pilot program is slated to begin in July of 2018, and will run for two years.

The first to benefit from this initiative will be the Windsor Public Library and the Essex County Public Library, both of which have committed to partner in this pilot program.

Initial steps will involve: 1) hiring a Project Leader to provide training to librarians on issues related to self-represented litigants and their needs, and 2) developing public educational programming.  The latter will include legal information seminars, question-and-answer sessions with local lawyers, and clinics to educate on the forms to be used in various legal processes.

The NSLRA notes that libraries are well-poised to participate, since they are already tasked with providing the public with access to information, and frequently see patrons who seek legal advice and information in particular.

For more information about this initiative see:

https://representingyourselfcanada.com/family-law-at-the-library-new-project-to-partner-with-public-libraries/

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 RussellAlexander.com

Busted! Court Relies on Sworn Financial Statements from First Divorce to Value Assets During Second One

Busted! Court Relies on Sworn Financial Statements from First Divorce to Value Assets During Second One

The husband was a 46-year-old, recently-separated businessman who met the 26-year-old wife when she was a junior at the law firm he used for his business matters and litigation. After they moved in together and he got a divorce from his first marriage, the wife left her job at the law firm to take care of the husband’s litigation and related corporate affairs.

They were married for 14 years before they separated, and had three children.

When they split up, the husband forwarded a newly-prepared separation agreement for the wife’s signature. She signed without obtaining independent legal representation.  She was comfortable doing so because she believed that the husband had provided full disclosure, and she trusted his assessment since he had considerable experience valuing businesses.

Using the business valuation information provided by the husband, the separation agreement would have called for the wife to pay the husband just under $1 million as an equalization payment; however, it also provided that the husband would agree to forgo her having to pay that amount.

Sounds like a good deal, right?

However, the wife slowly realized afterwards that the husband had misled her. Rather than her owe him money in equalization (which he waived), the proper calculation was entirely different because he had greatly overstated the value of the corporate assets that he brought into the relationship, most notably the value of his company at the date of marriage. This would inflate the amount she was adjudged to owe him way of an equalization.

She successfully applied to the court to set aside the separation agreement, on the basis that the husband had not given full financial disclosure.  The trial judge adjusted the calculation accordingly.

The husband appealed.  In support of his business valuation figures, he put forth the evidence of an expert, who attested to the fact that the value of the business on the marriage date was over $7 million.  However, the Appeal Court concluded that the expert was partial to the husband and lacked independence, and had given an inflated figure that could not be trusted.

Instead, the court relied on some “smoking gun” evidence:  the sworn financial statements the husband had filed in his first divorce, which showed that he had essentially brought no assets of value into this second marriage to the wife.  The trial judge had relied on this evidence as well in setting the separation agreement aside, and the Appeal Court confirmed that there was nothing improper about the trial judge having done so, even if it was to the husband’s detriment.

In the end, the husband was found to have intentionally misrepresented the value of his corporate assets, by claiming that they were worth $6 million more than their actual (court-determined) value.

The Appeal Court upheld the trial judge’s decision to set aside the separation agreement, and went on to calculate the proper equalization amounts using the true valuation of the husband’s assets.

For the full text of the decision, see:

       Virc v. Blair

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 RussellAlexander.com

Representing Yourself and Asking for Legal Costs? Read this First

Representing Yourself and Asking for Legal Costs? Read this First

Recently I wrote about a ruling on costs where a self-represented litigant was awarded significantly more in legal costs, than she had requested after trial.

That case, called McMurter v. McMurter, gave the court an opportunity to revisit some of the prior authorities on the issue, and to set out the principles that apply to awarding legal costs to self-represented family litigants.

Based on that review, if you succeed in represented yourself in your family law trial or motion and are looking to be awarded your legal costs from your unsuccessful opponent, here is what you need to know:

  • Whether you are legally trained or not, you cannot claim the same costs as a lawyer would charge. Instead, you can receive a “moderate” or “reasonable” allowance for your lost time.
  • Courts recognize that every litigant must prepare for court to some extent, whether represented by lawyer or not. So if you decide to represent yourself, you can only recover for the time and effort above and beyond what an average person would devote to getting ready for the proceeding.
  • You must also demonstrate that you spent time and effort doing work ordinarily done by a lawyer retained to conduct the litigation, and that you incurred an opportunity cost because of it.
  • Even if you did not give up remunerative activity to represent yourself in court, the court may award you costs for what would otherwise be lawyer’s work on the case. This means that you can get legal costs even if you are a homemaker, retirees, students, unemployed, unemployable, or disabled, etc.
  • The quality of your work as a self-represented person will also be a factor in the court’s assessment of what costs you might be awarded.

In terms of the actual fees, courts can vary widely on how they approach the mathematical calculation. Some will award an hourly rate varying from $20 to $150 per hour, minus the time you would have spent on the case if you had a lawyer present. Others have a “rule of thumb” that allows for a certain number of hours of preparation time, and a certain number of hours of trial time.

In any event, the amount must be reasonable, proportional and with the losing party’s expectations.

Returning to the McMurter v. McMurter case, the court applied these principles in awarding the wife her legal costs award of $30,000, even though she had asked for $18,000. It found that she had successfully represented herself in a complex case where there was a lot at stake. She had been exceptionally well-organized and presented her arguments well, and dealt with complicated legal issues and various family legislation. As the court put it, “She did the work of a lawyer in addition to the work expected of her as a litigant.”

For the full text of the decision, see:

McMurter v. McMurter, 2017 ONSC 725 (CanLII)

Main judgment:

McMurter v. McMurter 2016 ONSC 1225 (S.C.J.)

Fong v. Chan, 1999 CanLII 2052 (ON CA)

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 RussellAlexander.com

 

Self-Represented Wife Asks for $18K in Legal Costs; Court Awards $30K Instead

Self-Represented Wife Asks for $18K in Legal Costs; Court Awards $30K Instead

In McMurter v McMurter, the wife represented herself in the family matter against her former husband, who had a lawyer acting for him in their 15-day trial.

The husband had asked the court to terminate his $2,500-per-month spousal support obligations, but he did not prevail. After hearing all the evidence, the court found there was no material change in either spouse’s financial circumstances to justify such a change.

Pointing out that she had been totally successful at trial, the wife then asked for a court order forcing the husband to pay her full legal fees, including: 1) the legal fees she had already paid a lawyer for representing her up but not including trial, and 2) the fees for the 263 hours she personally spent preparing for and representing herself at the trial, using a rate of $35 per hour. (She had run out of money and was unable to afford to continue paying the lawyer’s retainer). All told, she was requesting a costs order for just over $18,000.

For his part, the husband was willing to pay for, at most, the 263 hours the wife spent preparing herself, but only at a rate of $18.32 per hour, which was what she would otherwise have earned at her regular job. This proposed rate was to compensate for “opportunity cost”, meaning the money she did not earn because she was preparing for trial.

The court was asked to fix the proper amount of legal fees the to which the wife should be entitled.

It started by pointing out that the Family Law Rules contain a presumption that a successful party, like the wife, is entitled to the costs of a case. From that basic premise, a court can adjust the costs award based on various factors, including the importance, complexity or difficulty of the issues, and the time spent on the case. Other decisions have expanded on whether non-legally-trained litigants who ask for costs can automatically expect to be paid the same hourly rate as a lawyer doing the identical work. (Hint: They cannot).

Here, the wife was entirely successful in resisting the husband’s motion to change, and the case was complex. The outcome was of great importance to her, since there was a lot at stake. The court commented that she was exceptionally well-organized and presented her position well, and dealt with complex family legislation and legal issues. As the court put it, “She did the work of a lawyer in addition to the work expected of her as a litigant.”

While it was not appropriate to grant her the full lawyers’ rate, the court awarded the wife 263 hours at $100 per hour, rather than the requested $35 which was “woefully inadequate considering the nature and quality of the work” she did. That higher hourly fee was “reasonable and appropriate for a well prepared and self-represented litigant” who had done work comparable to a junior lawyer in some respects, and to an experienced law clerk in others.

The court also allowed an added 50 hours for legal preparation, for a total of 313 hours. After making some minor deductions, the court awarded a total of $30,000 in costs. It concluded the ruling by saying:

Litigants cannot and should not assume that if a party is self-represented that they will not bear the consequences of a significant cost award in the litigation in the appropriate circumstances if they are unsuccessful.

For the full text of the decision, see:

Costs award:

McMurter v McMurter, 2017 ONSC 725 (CanLII)

Main judgment:

McMurter v. McMurter 2016 ONSC 1225 (S.C.J.)

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 RussellAlexander.com

A Good Example of Bad Self-Representation

justice

A Good Example of Bad Self-Representation

With separations, divorces and custody battles being so common, a frequent topic of cocktail-party discussion is whether it’s ever wise to represent yourself in a family law matter.

As an Ontario judge explains in a recent decision in De Cruz-Lee v. Lee, it can be a very unwise choice.

In the opening lines of a lengthy, 860-paragraph ruling, Justice Skarica summarizes the hazards of embarking on self-representation as a “cost-saving” measure:

This case is a classic illustration of the difficulty of obtaining justice when a trial is conducted by a party or parties who are self-represented. [The wife] was self-represented and conducted the trial by herself. It is said that a person who represents himself has a fool for a client. That saying should add something about how self-representation is about the most expensive trial lawyer you can pay for.

After detailing how a trial, originally scheduled to take between one and four days, ended up taking 9 days, the Judge added:

The dispute was over an approximate $53,000 held in trust. Regrettably, the costs of this trial will consume most if not all of that amount.

Next, Justice Skarica expressed some frustration at the fact that proper procedure was not adhered to:

I note that Superior Court trials in Family Court are governed by a variety of rules. These rules are designed to ensure trials are expeditiously run at some cost efficient level. At this trial, those rules meant nothing. Virtually all of [the wife’s] exhibits were produced for the first time at trial without prior notice on the respondent. They were allowed to be filed in any event due to the fact that [the wife] was unrepresented. [The wife] struggled with legal procedures and rules of evidence, which were observed more in breach than in rigour. When I produced law for [the wife] to make submissions on, she instead engaged in character assassination on the respondent, based on allegations not found in any of the evidence.

A little later in the substantive portion of the decision, in the course of reciting the facts that underpinned the ultimate ruling, the Judge lamented:

The reader may notice that as I review the evidence the facts seem incongruous, unwieldy, inchoate and at times just plain difficult to follow. This is because it was. I want the reader of the judgment to understand just how difficult and unorganized the evidence (that was admissible) was when presented to this court as a direct result of the conduct of [the wife].

Finally, the Judge ended the ruling’s de facto prologue with the following:

In writing this judgment, I have cautioned myself, that in the end, Ms. De Cruz-Lee was poorly represented and I am going to have to make allowance for that fact in making my decision.

Despite pointing out these many trial-related shortcomings, the judge no doubt went on to make a fair and impartial ruling in the case. Justice will have been done. Still, it’s puzzling and regrettable that a litigant would choose to put herself at such an obvious disadvantage this way, in what are no doubt very important legal proceedings (at least to her).

For the full text of the decisions, see:

De Cruz-Lee v. Lee, 2015 ONSC 1900 (CanLII)

 

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

Ontario Courts Tell it Like it Is

A judge-cartoon

Ontario Courts Tell it Like it Is

While reviewing a few Ontario family decisions recently, I noticed that the judges introduced their written reasons with a subtle and judicially-uncharacteristic lament, and in some cases, outright incredulity.

Using phrases like “a family tragedy” or “unhappy story” the judges provide a glimpse of some of the empathy and quiet frustration underlying their otherwise-impartial decisions.

For example, in Zesta Engineering Ltd. v. Cloutier, the court introduced the case this way:

This lawsuit is a case study of the risks and consequences of intertwining business, family, and marital relationships. On its face, this proceeding involves claims for breach of fiduciary duty and misappropriation of corporate assets by departing employees, coupled with counterclaims for wrongful dismissal. Beneath the surface it is the unhappy story of the impact of a marriage breakdown on a successful business enterprise, and the decade of litigation that has ensued.

In a case called VanSickle (Elms) v. VanSickle the court began its judgment this way:

This is a family tragedy. The [father’s] relationship with his two children, … is now irreparably shattered. The parties have spent money they could ill afford on four days of trial wherein the [husband] has done his utmost to convince the court that his daughter, a university student, is no longer a dependent and not entitled to any support from him. ….

And from Justice Quinn (who can often be relied on for a little editorializing in his judgments, see my previous Blogs, there is the less-moderate introduction to the decision in Szakacs v. Clarke, where he pointedly tells it like it is:

Introduction

For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.

One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. …

At several points throughout the trial, Ms. Szakacs emphasized that she was a Christian who practiced Christian values. There must be some key pages missing from her copy of the Bible.

Finally, in a judgment from only a few months ago called De Cruz-Lee v. Lee, the exasperated yet still-mindful judge said:

Overview

1 This case is a classic illustration of the difficulty of obtaining justice when a trial is conducted by a party or parties who are self-represented. Ms. Angela De Cruz-Lee (“Ms. De Cruz-Lee”) was self-represented and conducted the trial by herself. It is said that a person who represents himself has a fool for a client. That saying should add something about how self-representation is about the most expensive trial lawyer you can pay for. … [T]his trial originally was scheduled for one to four days and was set … to settle two issues. On November 17, 2014 a further pre-trial was held. The issues were down to ownership of the home estimated to be a one to two day trial. The trial in fact went on for nine days. The dispute was over an approximate $53,000 held in trust. Regrettably, the costs of this trial will consume most if not all of that amount. I note that Superior Court trials in Family Court are governed by a variety of rules. These rules are designed to ensure trials are expeditiously run at some cost efficient level. At this trial, those rules meant nothing. …

In writing this judgment, I have cautioned myself, that in the end, Ms. De Cruz-Lee was poorly represented and I am going to have to make allowance for that fact in making my decision.

Judges are only human. Such sentiments are no real surprise in light of the parade of difficult, doubtless heart-wrenching family disputes that come before them daily – some of which should never have been aired in a Canadian courtroom at all.

For the full text of the decisions, see:

Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810

VanSickle (Elms) v. VanSickle, 2012 ONSC 7340

Szakacs v. Clarke, [2014] O.J. No. 6214

De Cruz-Lee v. Lee, 2015 ONSC 1900

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

Can Wife’s Stepfather, a Suspended Former Lawyer, Represent Her in Court?

court door

Can Wife’s Stepfather, a Suspended Former Lawyer, Represent Her in Court?

I have written recently about the upsurge in self-represented litigants in Family Law proceedings, and some of the inherent dangers involved in choosing to act on your own and forego being represented by an experienced lawyer.

In a recent Ontario case called Scarlett v. Farrell, the mother in a custodial dispute likely thought she had the next-best thing: she asked the court permission to have her step-father – who was a former lawyer with about 200 trials under his belt – represent her at the hearing.

Perhaps surprisingly, the court refused.

The background facts of the case were not remarkable: the mother had custody of the 7-year old child, and the father had seen the child only once in three years. Nonetheless, the father was now seeking full custody. The mother claimed she could not afford to hire a lawyer but had been denied Legal Aid; she wanted to have her step-father appear on her behalf in court.

Normally, courts will not intervene in allowing a family litigant to choose his or her own lawyer, nor will it lightly interfere with a litigant’s decision to represent him or herself. And one would think that a court would have little objection over allowing the mother to be represented in court by a former lawyer, and family member to boot.

But in this case, the court had concerns over the mother’s choice: not only was the mother’s step-father currently under suspension with the Law Society of Upper Canada for failure to pay administrative fees (and was therefore not permitted to practice law), but he also had a past disciplinary record with them – which included previous suspensions for professional misconduct.

Given that suspension – and despite having over 30 years’ experience in practice — the step-father was technically a non-lawyer at this stage, and the court had to consider him as such. The rules of court provided only limited circumstances in which a non-lawyer can appear, and another judge had already denied a similar request by the mother to have the step-father represent her.

But more to the point, the court was particularly concerned in this case that the step-father would not conduct himself with honesty, integrity, and forthrightness if he was allowed to represent the mother. (And it pointed out that the step-father had not disclosed his past disciplinary record to the court voluntarily; it came to light when the father brought it to the court’s attention, after discovering that the step-father was using a different name in court than he had used for Law Society records). Nor, for that matter, would the step-father be likely to maintain the required level of objectivity and “appropriate emotional distance” in the matter.

Although the circumstances were unusual, the court’s concern with the integrity of the justice system were uppermost. It would compromise the underlying values of that system to allow a suspended or disbarred lawyer to appear before the court.
In the end, the court refused the mother’s request (with which, incidentally, she was assisted by her own mother), but adjourned the trial to allow her a chance to appeal the Legal Aid rejection or find a way to come up with the money to hire a lawyer.

For the full text of the decision, see:

Scarlett v. Farrell, [2014] O.J. No. 1913, 2014 ONCJ 194

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 our main site.

Judges Speak Out About Self-Represented Litigants

loud

Judges Speak Out About Self-Represented Litigants

As family lawyers, we are well-aware of the common criticism by those involved in family disputes and litigation: that hiring a lawyer is expensive.

Although it may seem self-serving to point out the benefits of retaining experienced family law representation for your case, we can do one better: Here are some illustrations of the types of comments made by judges themselves about the difficulties of untangling the merits of a case when self-represented (or otherwise unrepresented) litigants – admirably as they may try – are unable to put forward their best case due to the lack of legal training.

For example, in a case called Leigh v. Milne, the Court of Appeal lamented the slow pace at which the family litigation had proceeded:

The Process

At the outset, let me address [the wife’s] concern about the process, culminating in the order under appeal. This proceeding on appeal is a graphic example of how difficult it is for a self-represented litigant to effectively navigate through the legal system. While the Courts struggle to adapt to the ever-increasing numbers of self-represented litigants, the legal system remains a process which works most effectively for litigants who are represented by lawyers. Judges expect that lawyers will police one another in order to keep a case moving forward at an acceptable pace and, when necessary, seek the assistance of the court to do so. Unfortunately, this leaves proceedings where one and, especially, where both of the litigants are unrepresented, susceptible to being unreasonably delayed by the party who does not want the matter to proceed. This is what occurred here.

In the recent Ontario decision called Szakacs v. Clarke, the court complained about the quality of court documents that had been filed in connection with a family case:

In self-represented litigation, the “pleadings” rarely reflect meaningful details of the issues to be tried. In this case, after reviewing the various orders in the trial record, I ventured further and read the notices of motion and the supporting affidavits leading to those orders for the purpose of learning the specifics of the dispute. This allowed me, when the parties were testifying, to raise certain matters that they had omitted or had wrongly concluded were unimportant. A trial judge should not be put in the position of having to find, present, argue and decide a case. Wearing that number of hats is unbecoming.

Finally, courts are mindful of the potential unfairness to the other side. While being willing to recognize that – out of a sense of judicial and procedural fairness – a self-represented litigant should perhaps be given a little more lee-way in connection with having to follow court rules and procedures to the letter, the court must still ensure that both sides of a family dispute get the fair hearing to which they are entitled. This was pointed out in a case called Baziuk v. Dunwoody, where the court said:

The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.

The point to take away from this, is that the decision to represent yourself in your family dispute may seem cheaper financially, but may have hidden costs in connection with the judge’s own perception and assessment of the merits. Make sure you make the right decision for your particular case.

For the full text of the decisions, see:

Leigh v. Milne, 2010 NSCA 36

Szakacs v. Clarke, 2014 ONSC 7487

Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156; [1997] O.J. No. 2374 (QL) (Ont. C.J. (Gen. Div.)

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.