Costs refers to legal fees incurred in the process of litigating a family law matter. In Ontario, the Family Law Rules empowers the Court to order one party to pay some or all of the costs of another party. The recent case of Crowther v. Pasian, 2016 ONSC 3730 summarizes costs principles in Ontario. Costs rules serve three fundamental purposes (Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.):
- To partially indemnify successful litigants for the costs of litigation;
- The encourage settlement outside of court; and
- To discourage and sanction inappropriate behavior by litigants.
Cost awards are guided by "what the Court views as a fair and reasonable amount that should be paid by the unsuccessful parties" (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). An award for costs is discretionary, meaning that the Court may order costs in a certain amount, or it may decline to order costs. The Court's discretion is governed by the Family Law Rules. There is a presumption of costs being awarded to the successful party under rule 24. One factor the Court examines in determining a costs award is whether the unsuccessful party declined a reasonable offer to settle made by the successful party. Costs is clearly a complicated issue and there is ample room for advocacy both for the successful and unsuccessful party. As Ontario costs lawyers, our goal is to maximize the award when we act for the successful party and minimize it when we act for the unsuccessful party. Please contact Jeffrey L. Hartman at our Toronto office to discuss cost issues.