Despite the presumption the successful party is entitled to costs, a party who has behaved 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. O. Reg. 114/99, r. 24 (4). As per the Family Law Rules, the court will consider a variety of important costs considerations including (but not limited to):
DECISION ON REASONABLENESS
In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
- the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
- the reasonableness of any offer the party made; and
- any offer the party withdrew or failed to accept. O. Reg. 114/99,r. 24 (5).
If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
ABSENT OR UNPREPARED PARTY
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 or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice. O. Reg. 114/99, r. 24 (7); O. Reg. 235/16, s. 4 (1).
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).
Promptly after dealing with a step in the case, the court shall,
(a) make a decision on costs in relation to that step; or
(b) reserve the decision on costs for determination at a later stage in the case. O. Reg. 235/16, s. 4 (2).
In making a decision on costs in relation to a step in a case, the court shall decide in a summary manner whether anyone is entitled to costs and, if so, determine who is entitled and set the amount of the costs. O. Reg. 235/16, s. 4 (2).
FACTORS IN COSTS
In setting the amount of costs, the court shall consider,
- 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. O. Reg. 114/99, r. 24 (11); O. Reg. 235/16, s. 4 (3).
PAYMENT OF EXPENSES
The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 114/99,r. 24 (12).