Conduct During a Trial Can Impact Decisions on Costs


One of the more unfortunate and stressful aspects of any legal dispute, including those related to family law, is the cost associated with litigation. In fact, the financial and emotional stress associated with separation, divorce, and other family law issues is one of the reasons we offer mediation services to our clients. Some matters, however, cannot be resolved through mediation. In cases where litigation is necessary, it is common for the successful party to ask the court to order the other party to cover their legal costs. A recent decision from the Ontario Superior Court of Justice provides a good example of how the court considers offers to settle when making an order for costs. 

Husband Succeeded in Application for Decision-Making Responsibility

In a court decision released in August 2021, the father was granted a temporary order of primary decision-making responsibilities for the parties’ child. The child was also permitted to change schools, in order to attend one closer to where the father lives. The father, having been successful in his application, asked the court to award him costs amounting to $30,000. He made this request on the following grounds:

  1. The father had made an offer to settle and, on part of the motion, achieved more than the offer to settle.
  2. The motion was very important to the parties.
  3. The father conducted himself in a reasonable manner, while the mother had behaved unreasonably.
  4. The time spent preparing for the motion was reasonable.

The mother countered with a request for 50% of her legal costs. She stated she made reasonable offers to settle, and said the father made false claims about her mental health. She also argued that the father’s request for costs was excessive. The court noted the mother did not employ a lawyer to assist with her costs submission as she felt the page limit imposed on the parties did not leave her enough space to incorporate a lawyer’s arguments. The court indicated the mother did not request more space for submissions and chose instead to use her own “voice” to represent her interests.

Parties’ Behaviours and Offers to Settles Considered in Requests for Costs

The court stated that costs are governed by the province’s Family Law Rules. One of the rules states that a party who makes an offer (to settle) is entitled to full recovery costs if the court eventually awards that party with more than their settlement offer (however, a court can order otherwise). A second key rule is one that states the court is to consider the following three factors in arriving at a costs decision:

  1.      Each party’s behaviour.
  2.      The time spent by each party, and the related legal fees.
  3.      The offers to settle.

A 2018 decision from the Ontario Court of Appeal states that proportionality and reasonableness “are the touchstones that judges are to use to evaluate all costs claims in family proceedings.”

Costs Awarded Against Mother for Unreasonable Conduct in Proceedings

The court began its analysis by looking at the parties’ offers to settle. The court stated that the father’s offer to settle was very similar to the final order granted in the matter. The court found the father’s offer in and of itself was reasonable and he was trying to engage the mother in resolving the issue before having to proceed with a trial. 

The mother’s offer to settle, however, was not close to the eventual order issued. Additionally, her offer called on the father to abandon his application altogether, which the court found is not a factor to be considered when ordering costs.

The court expressed concern about the mother’s conduct throughout the trial, such as her failure to participate in the proceedings at various stages (particularly her failure to file pleadings for two years). In addition, the mother told the court the father’s actions were politically motivated, stating:

…“the (father) was likely politically motivated by the sudden action of bringing forward this motion; orders and costs must be allocated based on law and merit I should not have to pay for the (father’s) political and opportunistic exploits.”

The court found nothing in the record that supported these allegations and dismissed them entirely.

In looking at how conduct should affect cost awards, the court stated that it plays a “significant factor”. The court held the father did not exhibit any conduct that should impact his success in receiving costs. The court denounced the mother’s hard-line approach to dealing with the father, her failure to respond to the father, and her allegations about the father’s intentions. 

Both parties claimed they were successful at trial. The court noted that success can be determined by asking which party received what they requested. In this case, the father was successful in obtaining most of what he had requested from the court. The mother, however, did not achieve anything close to her desired result.

The court ultimately awarded the husband $25,000 in costs. Further direction provided that should the mother fail to pay these costs, the father would be able to deduct $2,000 per month from his support payments until the costs award was satisfied.

Contact Windsor Family Lawyers Johnson Miller Family Lawyers for Guidance in Family Law Disputes

For questions that only an experienced family law lawyer can answer, call Johnson Miller Family Lawyers at 519.973.1500 or contact us online. As a fixture of the family law community in Windsor and Essex County for over 25 years, we provide experienced, dependable legal advice in all types of family law matters.

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