The unmarried parties separated in 2009 after residing together for two years. They have a son together of whom the mother originally had temporary custody, and the father had extremely restricted access due to serious allegations the mother made against him. In 2012, the father was awarded custody and $11,500 in costs after the mother’s consistent dishonesty came to light during the custody proceedings. She was given generous access despite her deliberate attempts to alienate the child from his father. A further $20,000 in costs was awarded against the mother in 2014 following a contempt order and a suspected attempt to abduct the child from Canada.
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:
- 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 signatures of the order;
- expenses properly paid or payable; and
- 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.