Pursuing litigation for any legal matter, including those related to family law, can be a stressful time and cause financial strain. This is one of the reasons we offer mediation services in the hopes that we can help clients avoid the conflict and stress of a trial. However, litigation can be necessary at times. It’s important to remember that going through the judicial process can end up being an expensive endeavour, especially when the conduct of one of the parties is so detrimental to the proceedings that the court issues costs against that party.
As we see in a recent decision from the Ontario Superior Court of Justice, it’s important to work with an experienced family law lawyer to ensure that one’s conduct during a trial and in the months leading up to it is not seen as a reason for the court to award the high costs that are at play in the decision we review today.
Mother seeks more than $50,000 in costs from father
The costs award was decided following a three-day trial between the parties on various parenting issues. The mother sought $50,000 in costs for the trial and an additional $2,994.75 for follow-up work in the days after the trial and a one-day hearing on child support. The mother said she should be entitled to costs because of her success at trial and the father’s conduct. The father said there was mixed success at trial, and the mother’s request was excessive, leading him to believe that each party should be responsible for their costs.
The court explained that the entitlement and quantum of costs in these matters is the discretion of the judge but that a legal framework is available to help guide the courts. In assessing entitlement, the courts must consider written offers to settle unreasonable conduct from the successful party and whether any of the parties have acted in bad faith.
Looking at the conduct of the mother
The father told the court he believed the mother was only partially successful at trial and that his success on issues such as sharing the child’s information from professionals, sharing documents, sharing holidays, and keeping the child at the same school should be considered. However, the court said that the main issue at trial was the father’s unilateral decision to relocate to a city where the family used to live. He was also unsuccessful in his wish to have sole decision-making responsibilities for the child. Instead, the mother was granted sole decision-making responsibilities, leading the court to conclude she was the successful party and was presumptively entitled to costs.
The court considered any offers to settle, noting that the mother made an offer to settle on May 20, 2022, which was more favourable for the father than the outcome that the court ordered in relation to where the child would live and which parent would have the primary responsibility of the child. This included an offer from the mother to pursue a week-on/week-off approach where the child could live at the father’s relocated address. The court found this was not in the child’s best interests. What’s more, the mother’s offer would have resulted in lower costs for each party. The mother also made offers of child support which the father declined.
What about the father’s conduct?
The court then turned to the father’s conduct before and during the trial, stating that conduct can be considered unreasonable and in bad faith if the conduct is disrespectful to other participants or the court, unduly complicates the litigation, or increases the litigation costs.
In looking at the father’s conduct before trial, the court found that his lack of preparedness added unnecessary time and expenses for the mother and her lawyer, noting the father “filed and uploaded extensive materials in Caselines including a large volume of Our Family Wizard messages on the eve of the trial rather than in accordance with the deadlines specified at the TMCs.” During the trial, the court found the father failed to prepare the material required and failed to follow up with the directions provided by the court. The father also failed to reply to the mother’s lawyers between court dates, including a failure to file his position on various issues. The court asked the father why he took this approach, and the father replied that this was an “adversarial process” and that he did not have to communicate with opposing counsel.
Since the trial the court found that the father had failed to pay his full child support obligations, including for the two months leading up to the costs hearing. This was despite his income increasing from the time of the trial.
The court looked at the mother’s legal fees and found that her expenses were reasonable, especially due to the extra work the father’s conduct required her lawyers to perform due to his submission of excessive evidence that had to be combed through. This led the court to conclude that the mother’s request for just over $50,000 in costs was reasonable. It should be noted that the court also considered whether this was something the father could do, using the mother’s evidence about his finances to find he could pay the costs ordered.
Howie Johnson Barristers & Solicitors In Windsor Can Help You Reach Resolution In Your Family Law Matters
The experienced family law team at Howie Johnson Barristers & Solicitors has over 25 years of experience helping clients with all matters related to family law, including routinely working with clients who have issues related to child and spousal support orders. We also have significant experience supporting clients involved in issues that are especially difficult to maneuver or unique for those with high net worth. Please contact us online or by phone at 519-973-1500 to book an initial consultation and see how we can assist you today.