Zanewycz v. Manryk: Determining Costs Awards in Family Law Matters

In this case, the Court was faced with the issue of costs awards regarding a dismissed motion. The Wife won the motion and her lawyer had presented a Bill of Costs claiming substantial indemnity fees of $6,970.00. In the alternative, the Wife’s lawyer claimed partial indemnity fees of $4,637.00. The Bill of Costs basically means a statement outlining all the work done by the lawyer including all the expenses incurred on behalf of the client. The Husband’s lawyer argued that the costs should be $1,500.00 since the costs should be payable “in the cause” because of the “inability” of the Husband to pay an interim cost award.

When determining costs awards in family law cases, the starting point for judges is Rule 24 of the Family Law Rules. This rule has a presumption that states the successful party is entitled to costs for litigation. The rule goes on to state that after each step in the case the court should decide who, if anyone, is entitled to costs and the quantum of such costs. The rule also provides six factors to consider when awarding costs:

  1. the importance, complexity or difficulty of the issues;
  2. the reasonableness or unreasonableness of each party’s behaviour in the case;
  3. the lawyer’s rates;
  4. 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 signatures of the order;
  5. expenses properly paid or payable; and
  6. any other relevant matter.

Ultimately, the Court when exercising their discretion in awarding costs is looking at the overarching principles of fairness and reasonableness. It is extremely important to note that when dealing with costs in the context of family law, it is inappropriate to use the two traditional scales of costs (i.e.: substantial indemnity and partial indemnity). Rather, the Family Law Rules characterize costs as being costs on a full recovery basis or costs on a nominal recovery basis.

If an unsuccessful party is challenging the reasonableness of the successful party’s Bill of Costs, it is in the best interest of the unsuccessful party to present to the Court their own Bill of Costs to help assess whether the amount claimed was reasonably expected by the unsuccessful party. However, in this case, the Husband failed to present same when determining costs. The Courts want to ensure that there is access to justice for those who have limited financial resources, and hence when Courts consider cost consequences, they look at what is reasonable and fair rather than the actual costs of the successful party. At the end of the day, the Court decided that it was reasonable and fair to award the Wife costs of the motion for a total of $4,595.84.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. It never ceases to amaze me that people proceed to court seeking changes in support without making certain that they have been forthcoming in their disclosure to support the change in support that they are seeking. Then to claim that they cannot afford to pay the legal costs of the other party when the other party successfully defends the motion (no surprise there!) – I am not sure if that is nerve or simply ignorance.

    At the end of the day the judge ordered about 65% of Ms. Manryk’s costs. I appreciate that the cost of justice is a very real issue, particularly in light of current economic realities for many people. I also appreciate that the judiciary needs to set some realistic limits on costs awarded in family law matters. However, in situations where someone is coming to court not having done what they should have or otherwise acted in bad faith, I submit that judges should look to awarding the actual costs a successful party has incurred to encourage parties to use the court’s limited resources (and those of the other party’s presumably) only when they are prepared to provide disclosure, pay support or do such other things the law requires of them to proceed to court. The courts need to stress the importance of playing by the rules and make it clear that if you do not, there are serious consequences.

    Finally, a great piece of advice by Justice Shaw that counsel need to keep in mind when defending costs. Submit your cost submissions for the losing party as well. Assuming they are reasonable, it could go a long way towards helping a judge weighing what is reasonable with the result being a lower costs award.

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