Self- Litigants & Costs: A Cautionary Tale

April 8, 2019



The legal industry has seen an increase in self-represented litigants over the past decade, particularly in the area of family law.


For a variety of reasons, individuals choose to proceed with their matter without retaining a lawyer. Many may feel that they cannot afford a lawyer or do not qualify for assistance. Some have trouble finding a lawyer or trusting others with the carriage of their matter. There is also the selective few that believe they can achieve the same, or better results, themselves. This is not to say they can’t.


There are countless resources available online that assist individuals in navigating through their court proceedings. However, self litigants fail to recognize that knowing the law is not enough.  You need to know the law, how to apply it based on the facts of the case and how to present it to the court.  Family law is very fact driven.  Unfortunately, most self litigants cannot determine which facts are legally important. Most often than not, they provide the court with facts that are not legally relevant and fail to disclose the ones that are.  


Self litigants are also misguided in thinking that courts and Judges will go easier on them because they don’t have a lawyer.  This is far from the truth.  Judges must apply the law based on the evidence put before them.  They are not allowed to be bias; thus they cannot legally help you.


Let the decision of Kirby v. Kirby, 2019 ONSC 232 be a cautionary tale for all. 


This case was a long drawn out battle (17 years to be exact) over the typical issues involved with divorce – spousal support, child support, equalization of net family property, etc. The Husband retained a lawyer. The Wife remained self-represented.


Once the battle waged to an end – both parties walked away with some wins and some losses. The Wife was successful on some issues, the Husband was successful on others. Overall, the Husband was more successful.


Perhaps the biggest loss for the Wife was the decision on costs. Justice Conlan awarded the Husband costs in the amount of $150,000.00 (although less than his requested amount of $216,000.00).


The reasoning behind awarding costs to the Husband included the Wife’s unreasonableness throughout the duration of the proceedings. The Wife had “made wild allegations” and “single-handedly caused the hearing to be significantly longer than it should have been.”


The judge went on to say “this case ought to have never went to trial” and that the Wife should have accepted the Husband’s Offer to Settle.


This case illustrates a common theme that judges and lawyers have reported to witness: self-represented litigants tend to have unrealistically high expectations of outcomes they are likely to achieve. These falsely optimistic expectations lead self-reps to proceed to trial rather than settle their disputes.


With this considered, if you are considering to proceed with your matter unrepresented, ensure to do your research – what are your rights, what are the other party’s rights, what is and what is not reasonable in the matter. And don’t forget to compromise once in a while.


Read the full decision here:  Kirby v. Kirby, 2019 ONSC 232 (CanLII)

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