Legal information and insight from Edmonton lawyers

The Irony of Representing Yourself

| January 16, 2019 | by Kimberley Ketsa

Should I represent myself in my divorce or separation?

We are aware that hiring a lawyer can be very expensive. Many people choose to represent themselves in family law and divorce matters to save money. Unfortunately, a lack of legal advice can mean making mistakes in the law and process. This can waste the Court's time, cause delays and increase costs for both sides. Getting legal advice will help you understand the law and will likely mean you take a more reasonable position on issues. Understanding the court process means moving the matter forward as streamlined as possible.

Consider this before you decide to represent yourself. In one case, an Ontario judge found that the self-represented party caused unnecessary delay and complications for the divorce. A lack of cooperation and a refusal to follow the Court were part of the problem. The judge ordered the self-represented wife to pay the husband $150,000 to compensate him for his legal costs.

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From an article in the Financial Post:

The resolution was reached after a 10-day trial in which Justice Conlan of Ontario’s Superior Court of Justice made a final order in respect of spousal and child support, sharing of property and the distribution of the proceeds from the sale of the parties’ home.

According to Justice Conlan, the trial was “more like a sentence than a sojourn.” The trial’s unnecessary length and complications were, according to Conlan, attributable to the wife’s conduct and her decision to represent herself.

With the issues of property and support behind them, the couple still had one more fight to fight: who would pay the legal costs? Justice Conlan directed the parties to file written submissions on the issue of costs. The determination of the issue was, unfortunately, consistent with the wife’s uncooperative behaviour, which Conlan described as trying “the patience of the Judge to a degree that is beyond description.” The wife disregarded Justice Conlan’s direction regarding costs, filing submissions that were both too long and late (the judge nevertheless considered them).

Through their written submissions, both parties pointed fingers at each other. The husband took the position that the wife ought to pay costs to him in excess of $216,000.

The wife, according to the judge, did not express her position with any sort of clarity, leaving the judge without an appreciation of how she wanted costs to be resolved. Justice Conlan noted that “some of the relief (the wife) claimed has nothing to do with costs and attempts to alter parts of the Judgment itself, such as the request for lump-sum spousal support in the amount of $50,000 to be paid by (the husband to the wife) forthwith.” The judge ultimately concluded that the wife was likely trying to advance an argument that the husband should pay all or most of his own legal costs.

Justice Conlan disagreed. In his costs decision released on Jan. 9, he made it clear: the wife’s decision to represent herself caused the husband to unnecessarily incur substantial legal fees. The wife was ordered to immediately pay the husband costs of $150,000.

In arriving at his decision, Justice Conlan noted that “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 naive 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.”

In what may be a warning to individuals who choose to represent themselves for strategic reasons, the judge noted “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,” he continued. “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.”

In the end, the wife’s strategic decision to represent herself caused her to have to pay $150,000. The emotional toll of litigation lasting 17 years is immeasurable. Had she hired a lawyer, it is possible that the emotional and financial costs of the resolution of the separation could have been reduced significantly. Of course, such a result is now only conjectural.

[ To read the whole article by Adam Black, see the Financial Post website HERE ]

We believe that investing in legal advice early will save you in stress, cost and time later. If you cannot afford to hire a full-time lawyer throughout your legal dispute, we can provide limited scope services to ensure you are getting legal advice and help along the way. We can help with understanding the law, process and even assist in drafting court documents. This helps you with the legal questions and the paperwork, but allows you to keep costs down as you represent yourself ongoing.

The best way to keep legal costs down is to try alternative dispute resolution such as mediation, collaborative family law or written negotiations. We strongly encourage you to try these out of court processes first. For more information, see our ADR page here.

The most important thing is to get legal advice from a family lawyer before signing off on the final settlement or proceeding with a court hearing. You can contact us to book an appointment for a consultation with a lawyer.

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