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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1 (permalink)  
Old 07-04-2006, 12:26 AM
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Default Requirements for award of costs.

I am putting together a file for gaining an award for costs and was wondering what criteria the court would use in determining if costs would be awarded and how they would go about determining how much!

All information on this would be appreciated.

Thanks

Duped
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Old 07-05-2006, 12:27 AM
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Duped,

to be awarded costs, one has to be successful on their motion or claims at trial. There is a presumption that a successful party is entitled to costs.

If a court remains silent on the issue of costs at a motion, expect none to be ordered.

Offers to settle do come into consideration for costs.


lv
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Old 07-05-2006, 01:50 AM
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Question

hi everyone
correct me if I'm wrong but isn't costs about 1/3 of the entire legal bill --filing etc.?
It's true that costs are usually requested but it all seems so backwards. The person with the most money can afford a great lawyer who knows all the tricks of the trade whereas the other may have a cheaper lawyer-not as much experience-so money bags wins and the ALREADY financially strapped person is further in debt.
I think only under extreme delays, circumstances and unreasonable demands should costs be awarded.
Once again the almighty buck seems to excel.
Best to everyone
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Old 07-05-2006, 08:31 AM
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I have noticed that a Judge will ask for submissions for costs and at times hold a separate hearing for this issue alone. Success and reasonableness is measured for each party. The Judge considers offers to settle.

When one party has been successful and they submit X number of dollars, the Judge may review, items such as the number of years the lawyer has been called to the bar and compare this against the billable tariffs found in the Courts of Justice Act.

Ultimately an award of costs is in the hands and discretion of the Judge.

I did read a case where one party was represented by legal aid and they were successful. The court awarded costs based on tariffs, not on the amount legal aid was covering.

In another case, one party was represented by legal aid and were unsuccessful. Despite the fact that the party could not afford their own legal representation, was not a viable excuse to be unreasonable and act in bad faith. The court awarded costs to the successful party.

I posted another interesting case where the court awarded costs against a meddling party who fueled the litigation.

http://www.ottawadivorce.com/forum/d...pay-costs.html

lv
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Old 07-05-2006, 09:28 AM
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Default In My Situation...

In my situation, I had no choice but to go to court, as the wrongfull actions that lead to a court action were all done by my ex without my knowledge beforehand. once in court, my ex lied, tried every dirty trick she could, and in the end decides to settle for what I wanted from the start. I don't understand the awarding of costs issue, or why there was none in my case.

Is it true that in settling you can settle for whatever you want?

thanks

Duped
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Old 07-05-2006, 10:42 PM
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Question

LV
I understand what you're saying but I'm giving a reality of what could and believe me I'm talking from experience that you can as agreeable as you want but when your ex has the mentality of 'all or nothing' and 'destroy', a shark lawyer can conform the truth and facts to make the client sound reasonable. Basically anyone can agree to what the other side offers but if the offer is totally absurd are you supposed to take it?(rhetorical question of course)for the sake of looking like the peacemaker. The money bags can totally walk all over the fruitless party....and then moneybags gets costs b/c they didn't agree to a settlement that would affect the children's future for a very long time............BEST INTEREST OF THE CHILD.......... my!!!!
So the person with the least money now owes?????!!!!!!
I don't believe most judges are as thorough as they should be---lives are at stake--emotional, financial etc.
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Old 07-05-2006, 11:02 PM
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The two most important considerations in awarding costs are success and offers to settle.

Success is measured in terms of what you asked for from the court versus what the court ordered.

Timing of offers to settle are important - normally, the earlier the better. A last minute offer to settle doesn't necessarily save much is legal fees, even if you end up beating it in court.

The reasonableness of each party's actions in the litigation is also considered. So if the winning party acted unreasonably, costs awarded may be reduced, even to 0. I've even seen cases where the winning party was ordered to pay costs due to unreasonable behaviour.

Ability to pay is also considered, especially where there are children. Costs awards against custodial parents tend to be on the small side, regardless of any other factors.

Other issues involved in the consideration of costs is the complexity of the issue, the novelty of the issue, and the lawyer's experience.

I've found that over time, costs awards are rising in family law. That being said, if you do get one, it will probably only be about 1/3 to 2/3 of your legal fees.

How much is hard to say. In Ottawa, for a straightforward motion, I've seen $2,000 to $3,500. For a more complex motion, $5,000 to $10,000. I've seen costs awards of over $20,000 for a motion. For a trial, a costs award of over $20,000 would be fairly common.
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Old 07-05-2006, 11:07 PM
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Quote:
Originally Posted by logicalvelocity

If a court remains silent on the issue of costs at a motion, expect none to be ordered.
In Ontario, costs are to be decided at every step of the case (conference, motion, trial). If you don't get it at a particular step, you won't get it later on.

Also, you can't normally recover costs for what you'd need to do anyhow. For instance, often financial disclosure is time consuming and expensive, but you'd need to go through that even if your case wasn't in court. So, judges wouldn't normally award costs for time spent on this.
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Old 07-05-2006, 11:15 PM
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Quote:
Originally Posted by god knows the truth
hi everyone
correct me if I'm wrong but isn't costs about 1/3 of the entire legal bill --filing etc.?
It's true that costs are usually requested but it all seems so backwards. The person with the most money can afford a great lawyer who knows all the tricks of the trade whereas the other may have a cheaper lawyer-not as much experience-so money bags wins and the ALREADY financially strapped person is further in debt.
I think only under extreme delays, circumstances and unreasonable demands should costs be awarded.
Once again the almighty buck seems to excel.
Best to everyone
GKTT, I understand your frustration! And it's probably true that the spouse with more money is at an advantage.

But doing away with costs awards isn't the way to go. I think that, if anything, they should be made higher. The higher the price of losing in court, the less likely someone is to take an extreme position, because then they've got to pay not only their legal fees but also their spouse's legal fees.

Also, the reverse is true. It's horrible knowing you've been reasonable all along, spending $20,000 on legal fees, then getting a court award of costs for $2,000.
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Old 07-06-2006, 09:24 PM
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Default That is exactly what I am talking about...

I have spent approximately $10,000 that I do not have, to get a joint custody order, something i should of had right from the start, as their was absolutely no reason for me, my sons father, 50% of his DNA, and the stay at home parent for 6 years. Yet, my ex. is allowed to run away, clean me out(completely), fight for sole custody when I insisted on joint shared from the start, and then, settle for joint shared custody after taking 4 months away from my son and I. Now, I can barely afford to put food on the table, bills are piling up, and she is out buying a house (post bankruptcy), buying a new jeep, new laptop, going on a trip, buying herself 1000.00 suits, etc.. And the court decides not to award any costs. I don't get it.

Thanks

Duped
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