By Munera Lawyers
A common concern for family law litigants is the cost of going to court and getting divorced. For many, divorce is one of the most expensive endeavors that a person can undertake. Cost awards can encourage litigants to behave reasonably and reach a fair settlment. When talking about “costs” in the legal context, Courts are generally referring to the costs for filing documents or other fees that someone pays directly to the court, or the fees charged by legal professionals with respect to their services.
The Family Law Rules say that successful parties are presumptively entitled to costs.[1]As long as the successful party’s conduct was reasonable, that party may be awarded with substantial recovery costs which can amount to about 80% of the total costs.[2] Cost awards have three main purposes:
When deciding how much to award, the court considers the reasonable expectations of the parties and the reasonableness and proportionality of the following factors:
Family law cases arising in response to COVID-19 showcase what specific factors courts consider in awarding costs.
In AT v VS, the court awarded costs on a partial indemnity scale to reflect the respondent’s reasonable expectations.[5] In this case, the applicant sought recovery of her costs in the amount of $27,800.85.[6] Due to the fact that the respondent’s behaviour in denying COVID-19 was unreasonable and that the applicant won on many of her claims, the applicant was awarded partial indemnity costs despite the respondent being on CERB.[7]
In other cases, such as in Snively v Gaudette, the court awarded full indemnity costs against the applicant after taking into account the above-mentioned factors.[8] This case was a contempt motion brought by the respondent mother for the applicant father’s failure to return the children after an access visit. The applicant father not only exposed the children to the risk of COVID-19, but also acted in bad faith. In this matter, the Court found that the applicant father demonstrated bad faith in so far as making misrepresentations regarding his parenting ability in the form of exaggerations or untruths, and breaching a court order for reasons other than the best interests of the children.[9]
Finally, Courts may remit the issue of costs to the parties to settle themselves or decline to award any costs. In Trudeau v Auger, the mother brought an urgent motion seeking to suspend the father’s in-person access to their child on the basis that he does not take precautions against COVID-19.[10] Because of the uncertainty surrounding COVID-19, the court refused to make minor changes to existing orders.[11] In the end, the court did not order costs due to the novel nature of the question, limited financial resources, and the financial insecurity that would be caused by COVID-19.[12]
Parties going through litigation should be mindful of the potential cost outcomes they may be facing as a result of their positions and conduct during the litigation.
Do you have more questions? Contact MUNERA at info@munera.ca
[1] Family Law Rules, O. Reg. 114/99, s.24.
[2] Biant v SAgoo, 2001 CarsWellOnt 3315 (Ont SCJ) at para 21.
[3] Serra v Serra, 2009 ONCA 395, 2009 CarswellOnt 2475 at para 8.
[4] Supra note 1, s.24(12).
[5] AT v VS, 2020 ONSC 4198, 2020 CarswellOnt 9703, at para 66.
[6] Ibid.
[7] Ibid, at paras 57 to 68.
[8] Snively v Gaudette, 2020 ONSC 3042, 2020 CarswellOnt 6839, at para 48-50.
[9] Ibid at 31.
[10] Trudeau v Auger, 2020 ONCJ 197, 2020 CarswellOnt 5280, at paras 9 and 19.
[11] Ibid, at para 65.
[12] Ibid, at para 66.
NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.