Court Admonishes Litigants Who Drive Up Their Own Legal Fees
Family law litigation is frequently (and unfortunately) filled with intense acrimony between former partners, plus highly-charged emotions and a “win-at-all-costs” mentality. From the perspective of litigation procedure, this often plays itself out with one spouse deliberately inflicting needless inconvenience or added cost on the other, by making otherwise-legitimate procedural decisions that are secretly aimed to drive up his or her legal expenses.
Good examples of this kind of strategic one-upmanship on the part of former spouses include: bringing proceedings in an inconvenient location; failing to cooperate with existing orders; taking unneeded steps or bringing unnecessary motions (or forcing the other spouse to bring his or her own motion to get compliance with an earlier order); generally failing to co-operate, and racking up needless legal costs. These deliberate cost-inflating tactics are particularly egregious in light of the “loser pays” that governs costs in Ontario family proceedings: once the matter is over, the former spouse who is unsuccessful at trial will generally be required to pay the legal costs of the successful spouse.
But despite the common adage that everyone “deserves their day in court”, judges are not unfailingly patient with litigants who choose this strategy. To the contrary, courts will usually express their displeasure by way of an unfavorable costs order, or by crafting an order to apportion costs in a manner that makes it clear that the otherwise-successful party is nonetheless being penalized for his or her behaviour.
This was the situation in a high-conflict Ontario divorce case between two University professors called Czegledy-Nagy v. Seirli. Early in the proceedings, after hearing two preliminary motions for temporary orders relation to custody of the children and prompt sale of the matrimonial home, the court was asked to make a ruling on which of them was to pay the whopping $65,500.00 in legal costs that the husband had apparently incurred so far.
In this context, the court took the opportunity to reflect on the reasonableness of the husband’s decisions as to choice of counsel and approach to litigation preparation, particularly since resolving the issues between him and the wife would doubtless require protracted litigation in the future.
The court wrote:
[The husband] may hire as many lawyers as he wishes to have on his team, from whichever city he wants them to come from. That is his prerogative. (See Grant v. Grant, 2006 CarswellOnt 17 (Ont. SCJ)
However, no litigant should expect to drive up the cost of litigation in that manner for his/her own satisfaction or his/her need for attention and then to have the court saddle the other litigant with that bill.
There are many very competent local counsel (some are even LSUC family law “specialists”) in this Region.
The need to import another from afar is unnecessarily and indulgent.
In any event, the Court need only consider as one factor the amount that a successful litigant has expended to achieve success. Some litigants need more “hand-holding” than others and some counsel bill heavily for the slightest effort where others do not.
Therefore, despite [the husband] spending almost $65,500.00 to get to a temporary order (which required two attendances on motions), the principle of reasonableness that directs my determination is whether a reasonably party, opposing [the husband’s] motions could possibly anticipate an order for costs against her even approaching such a breathtaking quantum were she to lose those motions.
Despite my colleague, Wood J.’s view, expressed in [the decision in] Grant … that losing litigants in centres outside of Toronto should be ready to face “Toronto rates” if their opponent hired a Toronto Carriage Trade Counsel, my view is that [the wife] could not possibly anticipate being held responsible for the gargantuan costs order as sought, (especially when her counsel charged her only $15,000 for those same services).
I find that the Applicant’s cost-request entirely overreaching …
Ultimately – and rather than award the husband his full costs – the court adjusted them greatly downward, taking into account the poor behaviour of both spouses so far. Among other things, it ordered the wife to pay $9,500 in legal costs in connection with the earlier emergency motion brought by the husband, which the court pointed out was necessitated by her “selfish action to remove the children from their home and their father.”
For the full text of the decision, see:
Czegledy-Nagy v. Seirli, 2012 ONSC 119 (CanLII)
