In the recent decision in Wallegham v Wallegham, the Ontario Superior Court provided an overview of the cost consequences in Ontario family law cases.

The parties were married on October 31, 2008 and separated on May 1, 2015. Their only child had been in the primary care of the mother since the separation. A court order was made on June 26, 2015, ordering that the child remain in the mother’s primary care and granting daytime supervised access three days per week to the father. Because there was a high level of conflict between the parties, they agreed that the father’s access would take place at the mother’s sister’s home.

In October of 2015, the father brought a motion seeking to change the conditions of his access. The judge did change the conditions of access, but did not grant all of the conditions the father requested. Although the father sought costs on the basis that he had been more successful than the mother on the motion, the court ordered that neither party should pay costs.

The court provided a review on the law of costs. Costs are to be awarded at the discretion of the judge, as provided by section 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules. When determining costs, courts must consider the following fundamental objectives as set out in Serra v Serra, 2009 ONCA 395:

a. to partially indemnify successful litigants for the cost of litigation;

b. to encourage settlement;  and

c. to discourage and sanction inappropriate behaviour by litigants.

The court must also consider all relevant factors given the circumstances of each case.

In this case, the court found that no costs should be awarded for the motion in question because, although the father was somewhat more successful than the mother, the overall success of the motion was divided, among other reasons.

The foregoing is a brief summary of a complex decision and is not intended to be relied upon as legal advice. If you have questions about cost consequences in family law cases, please contact family lawyer Jason P. Howie, online or at 519.973.1500.

To read the full decision in Wallegham v Wallegham, click here.