By: Ashley Iyathurai
Disclaimer: The information contained in this article is general in nature and does not constitute legal advice. You should contact Jeff Li or a family lawyer if you are concerned about your family law issues.
While costs are often at the forefront of every litigant’s mind, it might surprise some litigants to learn that their behaviour may in fact attract cost consequences.
In Jackson v. Mayerle, a family law case recently heard in Ontario, the Respondent was made well aware of this when the court ordered the Respondent to pay $192,000 in costs to the Applicant. In this case, the parties underwent a 36 day trial, a very long trial by most measures for a custody dispute.
After the conclusion of the trial, the court then dealt with the issue of costs. Costs are an important consideration that all litigants should be aware of, leading up to, and during litigation.
The Family Law Rules impose cost consequences in relation to offers and prospects for settlement between the parties. Rule 18 specifically addresses the cost consequences of offers to settle, and is meant to help encourage settlement. Under this rule, a party may be entitled to costs if the party makes an offer, and then later obtains an order that is as favourable, or more favourable, than the offer that was made.
In Husein v. Chatoor, the court addressed the rationale behind these rules noting that parties have an “obligation to begin to assess their respective cases at the outset of the litigation – even before the litigation commences – and to make all reasonable efforts to settle. Legal fees can create enormous financial burdens for litigants…”
In Serra v. Serra, the Court of Appeal confirmed that the costs rules are meant to achieve three main purposes: “(1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.”
Rule 24 of the Family Law Rules deals with cost consequences as well. Rule 24(1) notes that “a successful party is entitled to the costs of a motion, enforcement, case or appeal.” However, the Rules also note that a successful 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.”
In Jackson v. Mayerle, the court addressed costs under both Rule 18 and Rule 24. The court noted that the Applicant “attempted to take a practical and conciliatory approach” to the parties’ parenting issues. In contrast, the court noted that the Respondent’s behaviour was unreasonable within the context of Rule 24. Some of the behaviour that the court highlighted included: attempts to exclude the Applicant from the child’s life, rejecting some of the Applicant’s reasonable proposals, making unreliable accusations, fabricating evidence, and engaging in dangerous behaviour.
While the court noted that both parties should “assume responsibility…for the fact that considerable trial time could have been saved,” it also found that the Applicant was largely successful, and was mostly successful on those issues which took up most of the trial time. As a result, the court ordered the Respondent to pay the Applicant $192,000 in costs.
This case serves as an important reminder to parties of the cost of behaving unreasonably in the course of litigation.
If you need assistance with your family law issues from a solutions-driven firm that is experienced in resolving family disputes efficiently, feel free to contact our office at (416) 800-7196.
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