Did you know that a successful party in court may be able to recover the court costs associated with litigating? Family Law cases can range from being relatively simple to exceedingly complex. From hiring a lawyer, process servers, agents, filing motions, case conferences, enforcement and all the parts in-between, it seems like almost anything you do is going to cost you money. In family law the fees you need to pay to conduct your case are called costs, and these court costs are going to be an important consideration in how you run your case.
However, in Family Law a party may be able to have their court costs paid for by the other party. Under the Family Law Rules, the court can order a party to pay to the other party part or all of the costs associated with bringing the case to court, including a lawyer’s fees.
The Rationale for Awarding Court Costs
Courts impose costs for a few different reasons. One reason is to ensure a party with less money or resources is on a more equal footing with a relatively well funded spouse. This reason may be considered when one spouse made all the money and has all the assets of the couple in their name. By far, the most important reason courts impose costs is to encourage the parties to complete the case quickly, efficiently and with as little acrimony as possible. Court costs are often ordered against a party as a penalty for not accepting an offer, especially if the value of the offer is the same or better than what is later determined after going through litigation.
Presumptions regarding Court Costs
Under Rule 24(1) of the Family Law Rule of Costs, there is a presumption that the successful party is entitled to the costs. For example, if a party files a motion and the motion is successful, the party that won the motion is automatically presumed to have the costs of the motion reimbursed by the other party. Alternatively, if the party that filed the motion is not successful in getting their motion passed, the other party is automatically presumed to have their court costs in defending the motion, such as the lawyer, who argued against the motion, fees reimbursed. In a situation where the success of a step in the case is divided between the parties the judge may apportion court costs as he/she deems fair.
Unreasonable Behaviour and Bad Faith
While being successful presumes entitlement to court costs in family law matters, it is not the only factor and not a guarantee the judge will rule for costs in favor of the successful family law party. If a party has acted unreasonably they may be ordered to pay part or even all of the other party’s costs, despite that party being successful. So even if the court decides in the party’s favor, if the party acted unreasonably, the court can have the successful party pay the unsuccessful party their costs.
In deciding whether a party has behaved reasonably or unreasonably, the court examines the following:
- the party’s behavior in relation to the issues from the time they arose, including whether the party made an offer to settle;
- the reasonableness of any offer the party made; and
- any offer the party withdrew or failed to accept.
Further if the court determines a party has acted in bad faith, the court can force the party to pay all the court costs of the case and force them to pay those costs immediately.
Judges have also ordered costs against a party to punish them for improper behavior. Examples of such improper behavior includes making false accusations, hiding assets and income, conduct that unnecessarily prolongs a trial to increase legal fees, and intentionally disobeying a court order.
Appearing and Being Prepared
Appearing at a stage in court is taken very seriously. Being prepared is just as important. That is why the Family Law Rules allow a judge to make a cost award against such party’s that do not appear for court, or those that appear but are not properly prepared.
When and How Court Costs are Awarded
Costs are decided at each stage of the litigation. The judge or someone appointed by the judge decides if anyone is entitled to costs and sets the amount of costs. If a party wishes to have costs taken into consideration in relation to a particular state, that party must raise those considerations with the judge before the next stage of litigation.
The judge or the person appointed by the judge has wide discretion when considering court costs. The following factors are used in setting the amount of costs:
- the importance, complexity or difficulty of the issues;
- the reasonableness or unreasonableness of each party’s behavior in the case;
- the lawyer’s rates;
- the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, arguments, and preparation and signature of the order;
- expenses properly paid or payable; and
- any other relevant matter.
The judge can also make an order for security for costs to ensure that the court costs will be paid. An order for security of costs is based on one or more of the following factors:
- A party ordinarily resides outside Ontario.
- A party has an order against the other party for costs that remain unpaid, in the same case or another case.
- A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
- There is good reason to believe that the case is a waste of time or nuisance and threat the party does not have enough assets in Ontario to pays costs.
- A statute entitles the party to security for costs
Not only can a cost award have financial implications, it can also practically halt a party from advancing their case and can result in the loss of a case. For example, if court costs are ordered against a party, the judge can order that the party not be allowed to take any further steps in the case until the costs are paid. Further, a judge can even dismiss a case or strike out a party’s pleadings for failing to pay costs.
For more information about costs in family law, or about obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.
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