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  • Evaluating Success of a Motion to determine costs

    Hi All,

    Looking for some advice on how to properly go about evaluating the success of a motion.

    The Judge did not comment on cost submissions when rendering the decision, there were no offers to settle at before the motion and the results were somewhat mixed, basically the judge made up his own schedule for access which did not line up with what i was asking for or what the ex was asking for, he deviated.

    Is there a measure of success that can be applied to avoid/determine costs?

    Thanks.

  • #2
    Probably with mixed success you are looking at no costs being ordered, but at the very least it will be a judicial or negotiated decision if there was mixed success.

    If you are looking to argue the situation, perhaps break your position down into bullet points, and then show how many of those bullet points correspond closely to the final judgement.

    That said, costs are awarded when a result could have been achieved without going to court. If the final result is between the two positions, that can't really be said to be the case.

    Comment


    • #3
      Not to mention, costs are typically awarded when one party is unreasonable, but with no offers to settle being exchanged neither side had a chance to accept or refuse the other sides ideas... So neither side really work to avoid court.

      Comment


      • #4
        Originally posted by Janus View Post
        Probably with mixed success you are looking at no costs being ordered, but at the very least it will be a judicial or negotiated decision if there was mixed success.

        If you are looking to argue the situation, perhaps break your position down into bullet points, and then show how many of those bullet points correspond closely to the final judgement.

        That said, costs are awarded when a result could have been achieved without going to court. If the final result is between the two positions, that can't really be said to be the case.
        Thanks Janus, do you know of any good case law in this regard that i can references?

        Comment


        • #5
          Originally posted by Marcos View Post
          Thanks Janus, do you know of any good case law in this regard that i can references?
          Are you looking for costs to be awarded, or costs not to be awarded?

          Comment


          • #6
            Originally posted by Janus View Post
            Are you looking for costs to be awarded, or costs not to be awarded?
            Not to be awarded !

            Comment


            • #7
              Can't find particular case link (Oldfield v oldfield), but a quote:

              [37] However, much of the trial, as will been seen from the above analysis, turned on the issue of joint versus sole custody, the details of a shared parenting regime, and the effect of Dr. Awad’s report. As Justice Blair set out in Oldfield v. Oldfield, (1994) O.J. #3237 at paragraphs 25:
              It is the general rule that costs are not awarded in custody matters, save and very exceptional cases. The rationale for this is that it is the best interests of the children in question which is at issue in such proceedings, and that parents who bona fide contest the issue of custody do not stand in the same position of ordinary litigants.

              [38] In Oldfield, Justice Blair relied on the statement of Justice Granger in Weaver v. Tait, reflex, (1990) 24 R.F.L. (3<SUP>rd</SUP>) 372 at 373:
              In my opinion, costs in custody actions should only be awarded if a party has not acted in good faith or has made a frivolous claim. If both parents are capable of caring for the children and wish to have the court determine custody, such parent should not be deterred from making a claim for custody of his or her children by the threat of being liable for costs if unsuccessful. If a capable parent was concerned about an order for costs if he or she was not granted custody, such parent might not seek custody of the children and the children might lose the opportunity of living with the parent best capable of raising them. In addition, the children in latter years may feel that their parent who did not contest custody did no have any interest in having them live with him or her.


              Small costs awarded

              http://canlii.ca/t/1mxzx

              No costs awarded

              http://canlii.ca/t/220gn

              Comment


              • #8
                Originally posted by Janus View Post
                Can't find particular case link (Oldfield v oldfield), but a quote:

                [37] However, much of the trial, as will been seen from the above analysis, turned on the issue of joint versus sole custody, the details of a shared parenting regime, and the effect of Dr. Awad’s report. As Justice Blair set out in Oldfield v. Oldfield, (1994) O.J. #3237 at paragraphs 25:
                It is the general rule that costs are not awarded in custody matters, save and very exceptional cases. The rationale for this is that it is the best interests of the children in question which is at issue in such proceedings, and that parents who bona fide contest the issue of custody do not stand in the same position of ordinary litigants.

                [38] In Oldfield, Justice Blair relied on the statement of Justice Granger in Weaver v. Tait, reflex, (1990) 24 R.F.L. (3<sup>rd</sup>) 372 at 373:
                In my opinion, costs in custody actions should only be awarded if a party has not acted in good faith or has made a frivolous claim. If both parents are capable of caring for the children and wish to have the court determine custody, such parent should not be deterred from making a claim for custody of his or her children by the threat of being liable for costs if unsuccessful. If a capable parent was concerned about an order for costs if he or she was not granted custody, such parent might not seek custody of the children and the children might lose the opportunity of living with the parent best capable of raising them. In addition, the children in latter years may feel that their parent who did not contest custody did no have any interest in having them live with him or her.


                Small costs awarded

                http://canlii.ca/t/1mxzx

                No costs awarded

                http://canlii.ca/t/220gn
                Great! Thanks Again, ill be doing more research on this.

                Comment


                • #9
                  Originally posted by Janus View Post
                  Can't find particular case link (Oldfield v oldfield), but a quote:

                  [37] However, much of the trial, as will been seen from the above analysis, turned on the issue of joint versus sole custody, the details of a shared parenting regime, and the effect of Dr. Awad’s report. As Justice Blair set out in Oldfield v. Oldfield, (1994) O.J. #3237 at paragraphs 25:
                  It is the general rule that costs are not awarded in custody matters, save and very exceptional cases. The rationale for this is that it is the best interests of the children in question which is at issue in such proceedings, and that parents who bona fide contest the issue of custody do not stand in the same position of ordinary litigants.

                  [38] In Oldfield, Justice Blair relied on the statement of Justice Granger in Weaver v. Tait, reflex, (1990) 24 R.F.L. (3<sup>rd</sup>) 372 at 373:
                  In my opinion, costs in custody actions should only be awarded if a party has not acted in good faith or has made a frivolous claim. If both parents are capable of caring for the children and wish to have the court determine custody, such parent should not be deterred from making a claim for custody of his or her children by the threat of being liable for costs if unsuccessful. If a capable parent was concerned about an order for costs if he or she was not granted custody, such parent might not seek custody of the children and the children might lose the opportunity of living with the parent best capable of raising them. In addition, the children in latter years may feel that their parent who did not contest custody did no have any interest in having them live with him or her.


                  Small costs awarded

                  http://canlii.ca/t/1mxzx

                  No costs awarded

                  http://canlii.ca/t/220gn

                  Janus, everything i'm coming across is for dealing with Costs at trial. Have you come across anything for Custody and Access motions where not offers to settle have been made?

                  Comment


                  • #10
                    I'm also curious.

                    When arguing costs after trial, all Offers to Settle are admissible as final order is in place.

                    If you haven't reached trial, can Offers to Settle be introduced as evidence when arguing costs for a motion or can you only argue the evidence/requests presented at the motion hearing for which costs are being sought?

                    Comment


                    • #11
                      Originally posted by firhill View Post
                      I'm also curious.

                      When arguing costs after trial, all Offers to Settle are admissible as final order is in place.

                      If you haven't reached trial, can Offers to Settle be introduced as evidence when arguing costs for a motion or can you only argue the evidence/requests presented at the motion hearing for which costs are being sought?
                      If there were offers to settle the issues at the motion prior to the motion, then those can be brought forward to determine costs of that motion.

                      Comment


                      • #12
                        Originally posted by Marcos View Post
                        If there were offers to settle the issues at the motion prior to the motion, then those can be brought forward to determine costs of that motion.
                        Thanks for that info!!!!

                        Comment

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