Family law matters are fraught with so much emotional turmoil. First, the end of any relationship brings pain, sadness, and anger; then you have family and friends who take sides, followed by the practical uncertainties for the children, who are caught in the middle of the dispute. To make it worse, there are serious financial questions to be asked. Will I be ordered to pay child support and/or spousal support? Will I have to sell our home? Will I get to keep my pension intact? Will I have to hire a lawyer, and if so, how much money will that cost me? It is very depressing when you think about it.
To make matters even scarier, what happens when you decide to fight for what you believe is right, only to find out that you were wrong? This blog will deal with the issue of costs being ordered in family law litigation, regardless of whether you are on the right or wrong side of the costs order. I will talk about:
- When are costs ordered?
- How much will be ordered?
- What are the factors to be considered?
- How to avoid a costs order altogether!
When are costs ordered?
The Family Law Rules govern costs in family law matters (“FLR”), specifically Rule 24. The successful party in a step is presumptively entitled to costs. The rules go on to state that promptly after dealing with a step in a case, the court shall, in a summary manner, determine who, if anyone, is entitled to costs in relation to that step.
The normal steps in a court proceeding are:
- the First Appearance
- the Case Conference
- the Motion
- the Settlement Conference
- the Trial Conference
- the Trial
These steps do not always happen in this exact order, but they usually do. Costs can be ordered at each of those steps, and success at one step by a party does not necessarily mean they will succeed at another step. As you go through the steps, the amount of time/costs continue to grow because the amount of time and effort put into the case grows and grows.
In general, costs can be ordered by a judge when a party is successful at a step in the court proceedings. Or correspondingly, when a party is unsuccessful at a step in the court proceedings, unprepared for court, or has wasted time/effort of either the other party, the court, or both, at a step in the court process.
Let me dissect this further by giving an example:
Husband is the Applicant. The Wife is the Respondent, and she was served with his court documents two months ago. Husband and Wife appear at the first appearance date in court. Wife has not filed any materials, and she is asking for a lengthy adjournment to give her time to get a lawyer to respond formally. Husband believes Wife is intentionally stalling and has emails to show that threatened this tactic several months ago.
Husband can ask that the matter be put before a judge to decide if costs are warranted. Wife will be given the opportunity to say why costs are not proper at this point. If the judge believes the Husband, the judge will order costs against her.
This consideration plays out at each step in the court process. Please note that the party’s lawyer may be the one who is at fault and not the client. If the lawyer was unprepared or did not serve/file documents on a client’s behalf when they had the documents to serve/file, they ran the risk of paying the court costs directly or on behalf of their client!
How much will be Ordered? What are the factors to be considered?
The same rule (Rule 24 of the FLR) sets out the factors that a judge must consider in setting the amount of costs:
- 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 properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
- expenses properly paid or payable; and
- any other relevant matter.
So, let’s use another example (with the same couple referenced above) to illustrate better how this works in practice:
Feeling a little too cocky with his cost victory at the first appearance, the Husband brings a motion for shared decision-making authority (formerly “custody”) before a case conference. During the eight-year common-law relationship, there was no history of shared-parenting; rather, the Wife made all the decisions as the stay-at-home mother of the children, while the Husband was at work full-time and played in a beer hockey/baseball league some evenings and weekends. He rarely, if ever, attended school events for the children, and he did not take the children to medical appointments due to work commitments. But since the separation, he has tried to do these things, albeit unsuccessfully. He loves them dearly, and he is afraid that Wife will introduce her new boyfriend as the “father figure” if he does not get shared decision-making authority. As well, one of his buddies told him that if you get shared custody, you do not have to pay child support. The Wife, now with a lawyer, defends the motion and asks that the motion be dismissed as premature, with costs.
The judge hears this motion before a case conference and, as expected, deems it premature. The Husband has lost the motion, and the Wife’s lawyer asks the court for costs against him. The Judge will order a proper amount of costs, looking at the time spent by the successful lawyer in defending the motion on paper, the time spent preparing for the motion, and the time spent in court to argue the motion. The judge will also look at the Husband’s situation – was it brought in good faith, was it brought at the right time, does he have the ability to pay costs? Costs will be ordered, and the Judge will take all of the factors above into consideration into reaching a decision (If I were the Wife’s lawyer, I’d ask for costs of about $1500.00 to $2,000.00).
Please note. The fact that a client cannot pay costs is not a defence to a cost order. Otherwise, a party who was of modest means would be able to bring frivolous motions without any fear of consequences. That is not what the courts want or will allow. So even if a party is on legal aid, is unemployed, or is on welfare/ODSP, it will not stop a judge from ordering them to pay costs if it is proper to do so.
How to avoid a costs order altogether
The best way to avoid being on the wrong end of a cost order is to be reasonable and practical. Family law litigation can be a lengthy process, and it often requires people to compromise on certain issues and take the proper actions. However, not every issue is a “hill to die on.” This is where getting solid legal advice from an experienced lawyer really matters. If you take the time to hire a lawyer and let them review the file properly, they can guide you through the process and tell you where you are likely to succeed and where you are not likely to succeed, based on the current state of the law and the local practices of your court/judges.
Sounds simple enough, but this is where many clients make a big mistake. Rather than a small investment of time and money, some clients will have themselves a large divestment of money. They want to get a quick answer, usually one that goes along with what they want to hear from a lawyer! As I explain to clients when they call me in such circumstances, I cannot give them an answer, let alone the answer they want me to give, without:
- a proper review of the facts,
- a consideration of the law, and
- turning my mind to local practises and conditions.
It’s like asking a doctor to look at you for just a moment and asking them to tell you whether or not you have a disease without any diagnostic testing, blood/urine tests, or other such tests. It cannot be done, and it should not be done.
As well, I hear many clients say that, notwithstanding the advice I give them, they are taking a hardline on a position “as a matter of principle.” Sorry to tell you, folks, but for many lawyers, this is a red flag. A client who is willing to ignore well-reasoned advice on the basis that they believe they are right will often find themselves on the wrong side of the principle and the costs order. Lawyers are practical, if nothing else – we will advise you on the facts in front of us, not on the “but what ifs” or the “but that’s not fair” scenarios. Life is terribly unfair. Family law matters make life even more miserable. A cost order against you in a bitter family law case is just like getting splashed with water from by a car driving by a puddle of ice-cold rainwater in the last week of November. It’s no fun at all.