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Court Comes Down Hard on Self-Represented Wife – And Orders $150,000 in Costs Against Her

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Court Comes Down Hard on Self-Represented Wife – And Orders $150,000 in Costs Against Her

On a recent ruling to allocate costs of the litigation between a former couple that lasted almost two decades, the court had some pointed comments about self-represented litigants in general, and about the wife’s unreasonable conduct in the case, specifically.

The court began its judgment this way:

A New Year

It is 2019, and Ian and Katherine Kirby, after 17 years, have a Final Order in their marathon matrimonial struggle.

There is one more battle to fight, however – costs.

The Judgment

The trial, more like a sentence than a sojourn, lasted ten days.  Katherine acted for herself, and she is responsible for much of the prolongation of the hearing.

Although the divorce itself was agreed upon, the court listed the many specific legal issues that needed to be resolved through litigation between the former couple.  Each spouse had been successful on some issues and not others, and some had garnered only “mixed” success.  Overall, however, the court concluded that the husband was more successful in the outcome than the wife, and that he was more deserving of costs.

The court then made some general comments about self-represented litigants:

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.

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.

It then elaborated on what a court’s guiding principles are when awarding costs:

The principles apply to both types of litigants: (i) in deciding entitlement to costs, consider the presumption that a successful party deserves some costs, and consider the factors outlined in the Family Law Rules, and take into account any other relevant circumstance; (ii) in deciding quantum of costs, 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.

The court added:

Above all, place some emphasis on why we award costs to begin with – to partially indemnify successful litigants, and to encourage settlement (even where the final result was worse than what the party offered to settle for), and to sanction and deter inappropriate conduct by litigants (even behaviour that falls short of “bad faith”).

The process by which we decide costs is not science.  It is more artful than that.  Consequently, there is an inescapable degree of arbitrariness to any costs award.  To pretend otherwise, I respectfully suggest, is a little rich.

The court then examined the spouses’ respective conduct during the course of the litigation.  In fairness, it noted that both spouses were responsible for the fact that the file languished for years and years. But it credited the husband for making greater efforts to settle without a trial, for being better prepared, and for behaving “much more admirably during trial”.

On the other hand, the wife’s conduct was unreasonable:  She made late-breaking “wild allegations” of being raped by her husband, and failed to comply with prior orders.  Even her submission on costs was filed late, after being granted an extension, and it did not comply with the court’s express directions on its length.  (The court read it nonetheless, as a courtesy).

As the court summed it up:  “She single-handedly caused the hearing to be significantly longer than it should have been” and her conduct in the past two years or so was “worthy of serious condemnation by this Court”.

It concluded that the case “out to have never went to trial,” and that “awarding to [the husband] every cent of the $190,438.63 is in the cards”.

However, the court noted that the wife is “indeed, mentally ill”, a fact confirmed by the family physician’s evidence, and surmised that some of her unreasonableness is due to her psychological issues.  Concluding that this militated against awarding the husband his full costs, the court reduced the total to an even $150,000, all-in.  Those costs were to be immediately deducted from the wife’s share of the proceeds of the matrimonial home.

For the full text of the decision, see:

Kirby v. Kirby, 2019

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

Top Four Ways to Amend a Separation Agreement

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Top Four Ways to Amend a Separation Agreement

I have written before about separation agreements, and how they are a very useful – and one might say necessary – first step in the process leading to divorce between couples. However, as time passes a separation agreement drafted at the time of the formal split may no longer adequately address the needs of one or both of the parties later on. This may happen because circumstances have changed as the divorce approaches; alternatively one or both of the parties may not be following the terms of the negotiated agreement to the letter.

In such situations the separation agreement can be amended in one of several different ways. Here are those methods, and the main points about each that you need to know:

1) Change by Mutual Agreement.

At their essence, separation agreements are merely private legal contracts between two spouses; as such, they can be amended by mutual consent of the parties. Ideally, this will involve the assistance of an experienced family lawyer who can ensure that the desired changes are accurately and comprehensively included. The result will be an amending agreement or “addendum” which is dated and signed by the parties.

2) Mediation.

If the parties cannot agree on the nature or extent of the necessary changes, they may choose to have the assistance of a trained mediator to ease the amendment process along. The mediator will assist the parties to achieve negotiated, mutually-acceptable changes to the separation agreement which will better reflect their current needs.

3) Arbitration.

If consent amendments are not feasible and mediation is not likely to work, then the parties may choose to have changes implemented with the assistance of an arbitrator. The process is similar to going to court, but is less formal: This third party arbitrator will hear both sides, will help to narrow down the issues, and will assist in achieving a resolution that is binding on both spouses.

4) By a Court.

If none of these less formal solutions are appropriate or feasible in the particular circumstances, then the spouses may have no other choice than to have the matter determined by a court. Naturally, this involves the filing of relevant documents by each party, and attendance at a dedicated hearing to have the matter decided.

Needless to say, some of these methods are more expeditious and cost-efficient than others. Note that in general, courts are reticent to amend separation agreements unless there is some inherent flaw in the manner in which the agreement was reached in the first place, or where the spouses’ circumstances have change so significantly since the separation agreement was reached that it no longer fair and appropriate to let the original agreement stand. (And the concepts and tests that courts use to make this determination will be covered in a subsequent Blog.) The outcome will depend on the facts of each case.

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.

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A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Here is a list of 10 things you should consider.

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The parent with custody of a child has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

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