Understanding Costs in Family Law: Principles and Considerations
Costs in family law disputes often come as an unwelcome surprise to litigants. “You mean I have to pay for my ex’s lawyer?” The answer, depending on the circumstances, could be yes. That’s why understanding how cost awards work in family law is essential for anyone involved in litigation. In this article, I will outline the legal framework and basic principles behind cost awards in Ontario family law.
The Legal Framework: Family Law Rules
In Ontario, the Family Law Rules (FLR) [1] govern all family proceedings, including the principles surrounding costs. Since their implementation on July 1, 2004, these rules have marked a shift from the Rules of Civil Procedure,[2] which previously applied to family cases. The FLR emphasize not only case outcomes but also the conduct of parties throughout the litigation process.
Guiding Principles of Costs in Family Law
Rule 24 of the FLR establishes the framework for cost awards, with the following key objectives:
- Compensating the successful party for legal expenses incurred;
- Encouraging settlement and resolution outside of court;
- Deterring unreasonable or improper conduct during litigation; and
- Ensuring access to justice for all parties.
Compared to past practices, the FLR provide more structure to cost awards, leading to more frequent and substantial cost orders. The general rule is that costs should follow the event—meaning the successful party is entitled to costs. If a party achieves a better outcome than a prior settlement offer, they may be awarded full indemnity costs, making settlement proposals a crucial factor in litigation strategy.
Reasonableness and Proportionality in Costs
A fundamental principle in awarding costs is reasonableness, specifically enshrined in Rule 24(11)(b) of the FLR. Reasonableness is a subjective standard, meaning that the court will look at the whole context of the case to determine what may be considered reasonable in the given circumstances. As established in Zesta Engineering Ltd. v. Cloutier,[3] courts determine what is fair and reasonable rather than simply matching the successful party’s actual legal costs.
Unreasonable litigation behavior can significantly impact cost awards. Examples include:
- Failing to provide timely and complete financial disclosure;
- Advancing positions that lack legal or factual merit;
- Making excessive or unnecessary court motions;
- Wasting court time with avoidable delays; and
- Refusing to engage in meaningful settlement discussions.
Costs in Financial vs. Parenting Disputes
The approach to costs in family law differs depending on the nature of the dispute. Courts tend to apply cost consequences more strictly in financial disputes. The default rule is that the successful party is awarded costs, making strategic settlement offers even more important.
Comparatively, courts have been more cautious in awarding costs in cases involving custody, access, and decision-making responsibility. The rationale is that financial penalties should not deter parents from pursuing bona fide claims regarding their children. If both parties advance reasonable positions, the court may decline to award costs.
However, this approach is evolving. Courts are increasingly willing to impose cost consequences when a party acts unreasonably or initiates unnecessary litigation. If a parent obstructs proceedings or litigates in bad faith, they may face financial penalties.
Best Practices for Managing Costs in Family Litigation
To mitigate cost risks, litigants and their counsel should consider the following strategies:
- Make Reasonable Settlement Offers: A well-structured offer can protect a party from cost consequences or even result in full indemnity costs if the final outcome is more favorable than the offer.
- Litigate Responsibly: Courts scrutinize conduct throughout the case. Unreasonable litigation tactics can result in adverse cost orders, even for a successful party.
- Consider Alternative Dispute Resolution (ADR): Mediation and negotiation align with the courts’ preference for resolving family disputes outside of trial, often leading to reduced legal costs.
Personal Costs Against a Lawyer
In family law disputes, the courts take cost consequences seriously—not just for the parties involved but, in some cases, even for their lawyers. Under Rule 24(9) of the Family Law Rules, a lawyer who unnecessarily increases costs or engages in improper litigation tactics can be personally ordered to pay costs. This rule is designed to prevent legal professionals from prolonging disputes, filing frivolous motions, or taking unreasonable positions that waste time and resources.
For self-represented litigants, this principle serves as an important cautionary note. While you may not have a lawyer whose actions could trigger a cost order, the same expectations of reasonableness and good faith apply to you. Courts strongly disapprove of tactics that escalate conflict without cause. Actions such as withholding access to a child without a court order, filing excessive or irrelevant court documents, or refusing to reconsider a position that is clearly unsustainable can all work against you when costs are determined.
Furthermore, the courts take a firm stance against “sharp practice”—meaning conduct that is deceptive, unfair, or meant to gain an unfair advantage. For example, failing to notify the opposing party or the court of significant developments, misleading the judge, or trying to manipulate legal procedures to gain an upper hand can lead to serious consequences, including cost penalties. In Sambasivam v. Pulendrarajah,[4] the court reinforced that such conduct would not be tolerated.
Final Thoughts
In family law, costs are not solely determined by who wins or loses—the reasonableness of each party’s conduct plays a crucial role. To avoid unnecessary financial burdens, litigants should approach disputes strategically, engage in good-faith settlement efforts, and remain mindful of their legal costs.
Working with an experienced family lawyer ensures that claims and settlement offers align with legal principles, strengthening a party’s position on costs and ultimately saving money in the long run.
[1] Family Law Rules, O. Reg. 114/99.
[2] R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE
Under: Courts of Justice Act, R.S.O. 1990, c. C.43.
[3] Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.).
[4] Sambasivam v. Pulendrarajah, 2012 ONCJ 711.
Written by Caidan Ubell
Understanding the risks of cost awards is key to making informed decisions during a separation or divorce. At Progressive Legal Solutions, we help clients develop strategies that minimize unnecessary expenses and strengthen their position in court. Book a consultation today to learn how we can help you navigate your case efficiently and cost-effectively.