Is a Stay-At-Home Parent Entitled to Legal Costs If They Successfully Self-Represent?
If you are a successful self-represented litigant entitled to be awarded your legal costs, does it matter what you do for a living? Do stay-at-home-parents have a higher threshold to meet?
This was the question in a recent case called Cassidy v. Cassidy, which we wrote about in another recent blog. There, the wife had asked the court for an order requiring her husband, as the unsuccessful party in their recent divorce trial, to pay all of her legal costs – to the tune of about $125,000. Although most of these covered her legal bill with her lawyer, about $8,000 of it was for the period when she was actually self-represented.
This allowed the court to consider the increasingly-common question of the extent to which a self-represented litigant should be entitled to his or her legal costs at all, for the period when they have no lawyer acting for them.
The court confirmed the current state of Ontario law: If successful at representing herself, the wife could be awarded her legal costs if she met a two-part test. Namely, she needed to prove that:
- She devoted time and effort to the work ordinarily done by a lawyer; and
- As a result of her self-representation, she incurred an opportunity cost by foregoing “remunerative activity”.
Although the test was clear, the meaning of this phrase “remunerative activity” was open to at least some flexible interpretation by courts, and could affect different litigants in different ways. As the court explained:
A rigid approach to the interpretation of “remunerative activity” will unfairly penalise self-represented litigants who for one reason or another are not engaged in an activity for which they receive remuneration. For example, a parent who stays at home to raise children. Such a circumstance would mean that a party who is represented can litigate to the extent to which their financial resources will permit, with the assurance that irrespective of the outcome, there is no threat of a cost award against them because the self-represented litigant will never be able to demonstrate that they have incurred an opportunity cost by forgoing remunerative activity. In such an instance, it should be possible for the self-represented litigant to argue that she satisfies this requirement, by analogous reference to a remunerative activity in accordance with her skill and expertise.
With this principle in mind, the court concluded that – at least in theory – the wife could be entitled to her costs as a self-represented litigant in this case. Courts have applied a few different approaches to determining the costs amount, namely:
- By deducting the amount of money she would have earned elsewhere (and which she lost by doing the work), from the hourly rate reasonably charged by a lawyer for the same work; or
- By granting a reasonable and moderate allowance, rather than the costs that could be attributed to having a lawyer.
It added that the method used to determine what is fair and reasonable is discretionary, and will depend on the circumstances of each case.
However, the court considered the facts of the case, including the fact that the wife had acted unreasonably during trial by declining to even participate in settlement discussions – thus increasing the costs of the litigation. It concluded the wife was disqualified from being awarded her own costs while acting for herself in this instance.
For the full text of the decision, see: