Meaning of Cost in Family Court

[LakeErie]

I’m preparing to self represent and I wonder in Family Law, what does Cost imply when going to court?

I know normally the Judge will rule ‘The whole without cost’, but also I see lots of posts here talking about “award cost”, what are those situations?

I know usually each party takes care of her/his own lawyer fees, and it seems that if one side is really underprivileged without much money, the judge can order the husband to cover the wife’s cost to hire a lawyer.

How about the cost of the trial itself (the legal system that pays the Judges and Court clerks)? I hear that if someone is found to be in repeated contempt of court orders, he might be ordered 1) to pay the other party, and also 2) to cover the cost of the court? Is this true or common? For item 2), I wonder how much could it be?

Thanks.

[Berner_Faith]

Costs are usually only awarded to an unreasonable party... for instance if you and ex are in disagreement about say the buy out of the matrimonial home, and ex makes several good offered to you and you refuse those offers (or vice versa) and go to court, if the judge finds you were being unreasonable to the offers that were presented to you, meaning the judge is ruling the same as one of the offers, you may be on the hook for costs...

I have not heard of a husband (or wife) having to pay for the other spouses lawyer because they don't have much money...

[hadenough]

*this is from my trial's Final Ruling on Costs*
Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(4) Despite Subrule (1), 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 cost.

(5). In deciding whether a party has behaved reasonably or unreasonably, the court shall examine a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
b) the reasonableness of any offer the party made; and c) any offer the party withdrew or failed to accept.

(6). If success in a step in a case is divided, the court may apportion costs as appropriate.
(7). If a party does not appear at a step in the case, or appears but is not properly prepared to deal w/the issues at the step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
(8). If a party acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
(10). Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and to set the amount of costs.

Rule 24 (11) provides a further list of factors that a court should consider in dealing w/costs.
A person setting the amount of costs shall consider,
A) the importance, complexity or difficulty of the issues;
B) the reasonableness or unreasonableness of each party's behaviour in the case;
C). The lawyer's rates
D). The time properly spent on the case including conversations between the lawyer and party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument and preparation and signature of the order;
E). Expenses properly paid or payable; and
F). Any other relevant matter. O. Reg. 114/99, r. 24 (11).

In Serra vs Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, (2009) O.J. No. 1905, 2009 CarswellOnt 2475 at paragraph 8, the Ontario Court of Appeal confirmed the costs rulesa are designed to foster 3 important principles;
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.

Also see: Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579.

****** the judge goes on to provide a detailed "analysis" and in my matter, I was awarded Costs. (Just under 20g). Those monies are to go to my Lawyer and ex was given 6 months to the day of Final Ruling on Costs made, to pay it. Fat chance of that, but I guess we shall see ****

[hadenough]

B-Faith Quote: "Costs are usually only awarded to an unreasonable party.."

Costs are awarded to the successful litigant. The unsuccessful party is responsible for paying those costs. It's not an award for the person who was unsuccessful and/or behaved unreasonably. I suspect just an oversight on your part - as clearly you do grasp the meaning of costs, as it pertains to the Family Courts.

[Berner_Faith]

Sorry hadenough...I missed typed that...what I meant to say was... were only awarded to a party if the other was being unreasonable

Thanks for catching that

[hadenough]

Lol, that's what I figured BF.. "Unreasonable" is a polite way to put it. My EX lied his ass off - he totally humiliated himself. Even the Court Clerk looked at me twice w/eyes widened. Too bad there's not more of a hefty (monetary) penalty attached to Lying one's Ass off, 10-15 times, and getting caught - For that "performance" alone I should have been awarded costs on a full recovery basis.

[LakeErie]

..., if the judge finds you were being unreasonable to the offers that were presented to you, meaning the judge is ruling the same as one of the offers, you may be on the hook for costs...

I have not heard of a husband (or wife) having to pay for the other spouses lawyer because they don't have much money...

Thanks for your reply.

So that costs that you referred to is the cost of the unnecessary use of the court systems by any unreasonable party, right? What are the usual amount for such costs, in thousands?

Is this the Cost to deter the abuse by any unreasonable people of our legal system?

[hadenough]

Minimum 10-15g for 1-2 days of Trial. And that is just one lawyer's fees. Hourly rate, multiplied by the # of hours spent in court for trial, travel time to and from the Court each day, prep time etc. It adds up FAST. Our cost submissions for a 2.5 day trial were well above 25g. I don't know what ex's lawyer charged him.

[LakeErie]

..

Costs are awarded to the successful litigant. The unsuccessful party is responsible for paying those costs. .

This is the part that got me confused.

Say each party has his/her own lawyer and pays for the lawyers. If say the husband is found to be unreasonable and loses the case, and the wife wins. The judges rules 'With Costs" What does this mean? The husband will have to pay something for the wife (and how much)? Is this her lawyer fee? Or a fee of using the court system?

[Rioe]

This is the part that got me confused.

Say each party has his/her own lawyer and pays for the lawyers. If say the husband is found to be unreasonable and loses the case, and the wife wins. The judges rules 'With Costs" What does this mean? The husband will have to pay something for the wife (and how much)? Is this her lawyer fee? Or a fee of using the court system?

It's the legal fees charged by the lawyer. Basically, if one party was unreasonable and lost, they pay for the winner's lawyer. More or less. The amount itself can vary hugely, depending on the individual lawyer's fees, the length of the trial, that sort of thing. Even a self-represented person has costs, such as court filing fees, photocopying, and time spent on legal research and in the courtroom (they might not be allotted the hourly rate of a lawyer, but it's usually higher than at their own job).

There's a vicious circle thing going on here, when you think about it. The unreasonable party can drive up both parties costs because they have so much invested that they are afraid to lose, so they get more aggressive, and it becomes more expensive, etc etc. Both sides become so afraid to lose they lose sight of what's going on and just drag out the process in the hopes of ultimately winning. Only lawyers benefit, and they know it, and many encourage the circle.

[hadenough]

It IS a circle and I agree, encouraged. Lawyers count on it. Only the lawyers win. And even they get stiffed sometimes too, but they have more ways than the average person of getting their money. Yes, the person awarded costs - the monies awarded are to go to that person's attorney. The idea is to offset some of their legal costs, as the "unsuccessful" party is deemed to be the reason for why it got to trial in the first place, when it could have been avoided (if they'd been "reasonable").

My ex had NO hope of winning. He had lied on EVERYTHING. His CRA filings contradicted his sworn financial statements, and the list of conflicting documents was endless. He made a complete ass of himself. I wish cameras were allowed in our court rooms. I'd love to have the dvd of our trial. If he had half a brain, he would never have let things get to trial. Now he has his lawyer's fees, my lawyer's fees. Court ordered CS and SS at 4x the amount he was paying, and soon FRO will become an unwelcome part of his life. Total insanity that could have been avoided. But I made the mistake of picking this winner. Many many years ago.

[LakeErie]

Thank you all, I'm now clear on this topic, and it's good to know that even self-represented can be awarded costs.

[Ace]

Since we are on the topic of costs, I too am confused. Bear with me while I explain in summary.
1) I lost and divorce proceeding in 2009 incurring herendous costs of lawyer fees, awarded costs and transfer of assets. My lawyers cost me about $200k, awarded costs were $53k, Transfer of assets almost $300k. There was nothing reasonable about the judges decision. This was a white wash, a mockery of law. Even the Appeals court were reluctant to esentially retry the case in 2010 overturning about $40k in mistakes but awarding costs to her anyway thereby negating the gains. My lawyer quoted $15k for the appeal then billed me $25k. Court awarded her costs of $15k.
2) I have made 99% of the court ordered transfers but my x will not acknowledge them. Over 40k are FRO related resulting in a hefty balance at FRO. They wont take my word for it hence the balance remains along with enforcement.
3) I lost my job unfortunately during the 10 day trial. Judge thought I might be pulling a fast one so he turned on me like a poorly trained pit bull.
4) I have attempted to vary the child support beginning in Aug 2011. I made application in Sarnia court as this is my local court as per Family Court Rule 5.1a. I was told that I could not apply to vary the order in any other court as per Family court rule 5.3a
5) Case Conference in Oct 2011 but my x would not attend in person. She attended by conference call. She protested that she wanted it moved to Kitchener. Nothing was accomplished except my motion to vary could proceed and motions could be brought to motions court.
6) Settlement Conference in Jan 2012. Again she protested by not coming to Sarnia and attending by conference call. Instead of sending the Set. conf Breif she sent a motion and stapled the Case conf breif to it. It was mailed the day before and accepted by court clerks. Again nothing was accomplished except for the judge setting a date for the motions court.
7) motions court in late Dec allowed her motion to move to her jurisdiction. You guessed it she attended by Conf call. She relied on a family court rule where if the court decided that it would be substatially more convenient to move they should. More convenient to who I ask.
8) To add insult to injury the judge asked her if she is seeking costs. What costs I ask.... She wont drive here, she mails her stuff to the court, they accept it, she is self repd.
9) I got her costs today. She claims $500 for her response to motion to change, $430 for her case conf, $500 for her Settlement conf, $500 for her motion to change jurisdiction (Sarnia to Kitchener) and $200 miscellaneous for a grand total of $2130 with NO receipts.
After all that I have 3 questions:
A) I had no chance to go to any other court hence why might I be viewed to be unreasonable
B) Why is she asking for costs back to the commencement of my application to vary child support I am within my rights as I am being billed by FRO based on a 6 figure income but I am unemployed.
C) Why does the court order state `Parties have 20 days to submit costs request and Applicant (me) 10 days days following reciept to respond
APPRECIATE ANY INSIGHTS as I am self repd, out of cash and being bullied and threatened by my x daily.

[hadenough]

Ace: that is a total disaster. I don't even know what to say.

LakeErie; my ex insisted throughout litigation and at trial that his income was only $xxxx. This "claim" differed from his financial statement and differed still from other evidence. Still, even at trial he testified to a shockingly low amt of income. This equals bad behavior etc. The Judge then imputed an income to him far greater than what his claim was. Not only that, but the amt she concluded was a better reflection of his actual income was higher than what my lawyer and I presented in our Formal offer to settle with CS and SS calculated on an income of ie: 70g per year. The judge ruled that his income was more like $85g per year. So because of all of that, his lying, and the figure his income was imputed at by the Courts, he lost.

Now he has his lawyer's bill to pay - and a fair chunk of mine. The costs were awarded to me but they are meant to go directly from ex to my lawyer. He rejected a reasonable formal offer to settle and the Judge found his income to be even greater than what we proposed in our offer to settle. His rejecting that offer means more bad/unreasonable behavior in the Court's view. Therefore, it's established that HIS unreasonableness etc was the cause for the matter going to trial, therefore he has to pay costs. He had the opportunity to settle, and did not. He tossed the dice - and he lost.

[financial woos]

I think I'm in the same boat the dummy keeps lying, then changes his mind causes all kinds of cost. Keeps telling lies on sworn statements, I provide legal actual documents to show otherwise. We keep going to court for all the standard stuff, he is ordered to pay then the cycle starts all over again. I have done all the right things provided all the true docs and then we start again. These costs would never have been incurred if he told the truth, quit giving false statements and changing lawyers. How do I address this more affectively so to ensure the total costs are paid by him as his actions of lies refusing to provide true discloseurs, false statements are what are driving the cost up.