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.)
