There is a lot of talk lately in Ontario family law circles about amendments to our current rules about costs. “Costs” refers to one person in a court dispute paying for the legal expenses of the opposing side.
In our family law system in Toronto, 80% of people are self-represented. That means that there are a lot of cases where self-represented people are litigating against each other (in other words, neither side has a lawyer and thus neither side incurs legal fees). Costs are not really an issue in these cases. (Yes, self-reps still have to pay court filing fees and perhaps process server fees if they decide to use a process server – but these expenses pale in comparison to legal bills.)
That leaves cases where only one party is represented by a lawyer, or both parties are represented. I address these below.
To me, costs make sense in the “slam-dunk” cases or the egregious cases, whether both sides are represented or only one side is. No one should have to go to court to get Table child support for a five year old who lives full-time with them. No one should be dragged into court every six months on a motion to change that has no foundation.
But the problem, in my view, is that in family law there are areas where the law is not clear at all. Take, for instance, spousal support. The length of the relationship combined with the parties’ incomes can result in a SSAG (Spousal Support Advisory Guidelines) range of $0 to $1500 per month, for 5 or 10 years. This is quite a disparity, and that’s assuming that the parties agree on entitlement to spousal support in the first place (unlikely). The judicial outcome in spousal support cases is often quite unpredictable, and the difference between who “won” and who “lost” can be very slight. As a lawyer, it concerns me that my client could potentially have costs awarded against him or her where the best advice I could give regarding the likely outcome, based on the existing jurisprudence, is so qualified, so uncertain. If the law is so uncertain, then it seems quite unfair to have cost-shifting, regardless of whether only one side is represented or both are.
Some argue that the availability of a costs award protects people from aggressive self-represented litigants who may be advancing spurious claims, but there is also the view that the cost rules benefit aggressive (represented, richer) litigants who litigate against (poorer) self-reps – because the represented litigants know they aren’t at risk of costs consequences when they litigate the self-rep, so they can litigate with impunity.
While I am unaware of any statistics showing how frequent either of these scenarios is, it can perhaps be assumed that the two “injustices” cancel each other out and that neither of these arguments should carry the day.
If they do indeed cancel each other out, then it leads back to my main point which is that costs should be reserved for the really clear-cut cases or the egregious (spurious) cases.
Some people argue that the “grey” cases should never be litigated in the first place, and because the law is so uncertain the parties should just settle, but to me that does not seem like the right answer. People deserve clarity in the laws that govern them. If we can’t get legislative change then we need judicial precedents to get that clarity. Unfortunately, this means that some people will have to suffer under the current costs rules when it is not their fault that the law is unclear.