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Posts tagged ‘self-represent’

Top 5 Latin Terms You Should Know Before Going to Court


Latin terms are often used in the Court of law sans English translation or explanation. If the party to the ligation is not familiar with these terms, he/she may not fully understand what is going on in their own legal matter. These are the Top 5 Latin Terms You Should Know before attending your family law case in Court.

1. In loco parentis

“In the place of a parent”

This phrase is used to refer to a person or entity assuming the normal parental responsibilities for a minor child. It is often used in situations where there is a transfer of legal guardianship, or to refer to schools or other institutions that act in the place of the parents on a day-to-day basis.

 

2. Lex loci

“In the law of the place”

The term refers to the law of that particular country, state, or locality where the matter under litigation took place. It usually arises in connection with legal disputes that span multiple jurisdictions, for example where children have been removed from Canada by one parent and the issue arises as to which jurisdiction’s laws govern the situation (an area of law called “conflict of laws”).

 

3. Non est factum

“It is not my deed”

This term is more commonly used in contract law, but it can be applied in the context of separation agreements that have been reached between spouses or common law partners. It refers to an assertion by one signatory to a contract that the agreement is invalid on the basis that he or she signed unintentionally and without fully understanding its implications.

 

4. Parens Patriae

“Parent of the nation”

This term refers to the power of the State to act as parent to a child, in situations where the legal parents are unable or unwilling to do so. For example, when children are removed from their parents’ care in order to be cared for under the auspices of the Children’s Aid Society, such a step is achieved and authorized through the exercise of the Ontario government’s parens patriae authority.

 

5. Res judicata

“A matter judged”

A matter that is res judicata is one that has been adjudicated to the point of conclusion, meaning no further appeals or legal actions by the involved parties is permitted. For example, if divorcing parties have brought their claims for equalization of net family property to one court, and have had the matter heard and adjudged, then they cannot afterwards go judge-shopping to a different court for a different or better outcome on that particular aspect of their separation. Once their issues have all been heard (and leaving aside those legal matters that are eligible for applications to vary), the matter becomes res judicata.

 

Honorary Mention…

Inter vivos

“Between the living”

This term is used to refer to a gift or other non-sale transfer between living parties. For example, a gift by living parents to their children is called a gift inter vivos; this is distinct from a transfer made by Will, which takes effect upon the testator’s death.


This blog is an updated version of the original article published in 2012.

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At Russell Alexander Collaborative 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

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 “ought 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

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