In family law, like many other areas involving litigation, the old adage of “loser pays” holds true. If you are successful in family court, whether at a motion, trial, appeal, or other stage of the litigation, you can request that the other party pay you an amount to cover your costs. In Ontario, Rule 24 of the Family Law Rules governs costs.
Can I recover all of my costs?
While the presumption is that the successful party is entitled to recover their costs from the unsuccessful party, it is rare for an individual to recover 100% of the costs they incurred. Generally speaking, courts order an amount between 60-80% of a party’s costs, which fluctuates based on the specific factors in each case. There are, however, circumstances that can give rise to costs awards that are closer to 100%. These usually involve unreasonable behaviour or a party acting in bad faith.
What factors does the court consider?
Courts will look to a variety of factors when deciding upon costs, which are outlined in Rule 24. These include:
The importance, complexity or difficulty of the issues;
The reasonableness or unreasonableness of each party’s behaviour in the case;
The lawyer’s rates;
The time spent by the lawyer on the case; and
Expenses incurred, for example, the cost of expert reports.
What happens if we are both successful?
In the event that both parties have achieved some measure of success through a stage in the litigation process, the court has the power under Rule 24 to apportion costs as they deem appropriate. Thus, if one party is deemed to be “more successful” than the other, they may recover some, but not all of their costs.
Acting Unreasonably or in Bad Faith
Courts do not look kindly on litigants who act unreasonably or in bad faith, regardless of whether you are successful or not. Rule 24(4) states that if you have acted unreasonably during a case, you may be ordered to pay the unsuccessful party’s costs, or you may not recover your costs even if you are successful. When determining whether a party has acted reasonably, the court will consider the parties’ behaviour and offers to settle, including the reasonableness of offers and whether offers were withdrawn or not accepted.