Last weekend I presented at the County of Carleton Law Association (CCLA) Family Institute and spoke about getting your court costs. The most important aspect of costs is that the successful party is entitled to have some or most of their legal fees paid by the other side, as long as the winning party acted reasonably. A big factor in determining costs is also the Offers to Settle made by each party (see Erin Lepine’s blog article on Offers to Settle for more information).
If your opposing party is self-represented you should know that even though the other side does not have a lawyer, if theyare successful, and act reasonably throughout the proceeding, he or shemay receive a costs award against you. The self-represented partywill not be entitled to costs on the same basis as a party who retained counsel, but he or she is still entitled to a meaningful amount which could seem quite substantial to you.
In Jordan v. Stewart, 2013 ONSC 5037 (Ont. S.C.J.), the court sets out some of the work for which a self-represented party may claim costs:
- Fees of a lawyer he or she consulted, even though the lawyer was never on the record;
- Costs to appear without counsel (the equivalent of counsel fees for work the self-represented person does instead of a counsel retained). The lay litigant must show that they devoted time and effort to do the work ordinarily done by a lawyer and incurred an opportunity cost by foregoing remunerative activity. The cost award should be a ‘moderate’ or ‘reasonable’ allowance for the loss of time devoted to preparing and presenting the case;
- Travel and accommodation costs;
- Loss of income (routine awards on a per diem basis for litigants who would ordinarily be in attendance at court in any event);
- Fees of experts.
When determining what the amount of the costs award will be, the court will consider the quality of your work, and whether the self-represented party’s actions delayed or assisted in hearing time and final determinations. The amount awarded, if any, is an issue over which the judge has wide discretion, so there are no guarantees.