What are costs in a family law case and how are costs determined?
An award of costs (where one party has to pay a portion of the other party's legal fees) in the context of a family law case is governed by Rule 24 of the Family Law Rules, as opposed to the Rules of Civil Procedure. Under the Family Law Rules, the reasonableness of the parties in litigation is an extremely important consideration in the determination of costs.
Under Rule 24, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. This means that there is a presumption that the unsuccessful party will have to pay a portion of the successful party’s legal fees. However, this presumption does not apply in a child protection case or to a party that is a government agency. Moreover and despite this presumption, a successful party who behaves unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. In deciding whether a party has behaved reasonably or unreasonably, the court examines offers to settle.
Courts are directed to award costs to a successful party where a party is more successful than his or her offer to settle. Accordingly, offers to settle are extremely significant and can either neutralise a party’s success or be the cause of further penalty to a losing party.
According to Rule 24, if a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice. Also, if one party acts in bad faith. the court can order that a substantial amount of costs be paid immediately.
The person setting the amount of costs considers the following factors in an award 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.
Costs are intended among other things, to indemnify successful litigants for the cost of proceedings, encourage settlement, and to discourage inappropriate behavior in litigation.
For more information about costs in your divorce case, contact the experienced family lawyers at Krol & Krol at 905.707.3370.
