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Factors Affecting Costs Awards (Case Law Update)

Posted on March 20, 2019

The recent decision of Beaver v Hill, 2018 ONCA 840, revisited the factors that affect the amount of costs that a court will order when a party is successful in family law.

The Family Law Rules set out the appropriate considerations for judges when they are determining the amount to award in costs. These considerations include:

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

Judge holding gavel in courtroomThe court confirms that judges are not constrained to a specific scale of costs in family law. While it is open to them to order a full recovery of costs, this should not be done unless the judge feels as though it is proportionate and reasonable in the circumstances after weighing the various factors mentioned above.

In this particular case, the Court of Appeal disagreed that a full recovery of costs was appropriate for the following reasons:

  • The judge did not apply the principles of proportionality and reasonableness;
  • The judge placed too much emphasis on an Offer to Settle that did not contain a true element of compromise;
  • The successful party claimed various other relief that she was unsuccessful in obtaining; and
  • The judge considered that the unsuccessful party had the means to pay a larger award of costs.

It is important for a party to consider the consequence of costs when deciding what relief to claim from their spouse in a family law dispute. If a party is unsuccessful, they may be obligated to pay their own legal costs as well as a portion of the opposing party’s costs, which can amount to a substantial amount of money.

If you have any questions regarding the ability to seek costs in your family law case, don’t hesitate to contact Epstein & Associates to set up your free initial consultation.

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