The court recently reviewed the factors that must be considered in determining which litigant in a family law proceeding should be awarded costs, and in what amount.

What Happened?

The parties met in Afghanistan in approximately 2008. They had one child, born in October 2010.

The mother came to Canada with her family, including the child, in 2014. The father visited Canada on four occasions in 2015 and 2016, but only saw the child on one of these trips, in March 2016.

The father sought access to the parties’ child, and the mother brought a claim for a restraining order against the father. After one and a half days of trial, the court dismissed both parties’ requests.

The parties were invited to make submissions on costs.

Legal Framework

The court began by outlining that costs orders are governed by rule 24 of the Family Law Rules (FLR), which states that there is a presumption that the successful party is entitled to costs. The FLR also sets out the factors that must be considered when fixing the amount of a costs order.

The court explained that costs awards are designed to:

• compensate successful litigants for the cost of litigation;
• encourage settlement;
• discourage and punish inappropriate behaviour by litigants; and
• ensure that the primary objective of the FLR is met (that cases are dealt with justly).

However, the court emphasized that reimbursement to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award. The court stated:

The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called “outdated” since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexatious litigation, and to discourage unnecessary steps. This change in the common law was an incremental one when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant.

The Court’s Decision

In this case, the mother was successful on the issue of access and the father was successful on the issue of the restraining order. However, the majority of the time at trial was spent on determining whether the father should be awarded access to the parties’ child. As a result, the mother was entirely successful on the more time-consuming issue. She was therefore entitled to costs.

In fixing the amount of costs, the court first noted that this case was important to the parties, but not complex or difficult.

The court then considered the reasonableness or unreasonableness of each party’s behaviour, outlining that in determining this, it had to examine:

• the parties’ behaviour in relation to the issues from the time they arose, including whether each party made an offer to settle;
• the reasonableness of any offer a party made; and
• any offer a party withdrew or failed to accept.

In this case, the court concluded that the father’s behaviour in the litigation was unreasonable for a number of reasons, including that the father lived in Afghanistan and had no plans to come to Canada in the near future (his only plan was for 15 minutes of Skype access with the child per week). That said, the court also found that the mother’s behaviour was not without fault, as a significant amount of her evidence was deemed to be irrelevant or mostly unhelpful in coming to a conclusion on the issues that were decided.

Next, the court considered the parties’ offers to settle, explaining that litigants and their lawyers have a positive obligation to behave in ways that move cases toward resolution. In this case, the mother was successful at trial and the decision matched the substantive content of her offer to settle, whereas the father did not make an offer to settle at all.

Finally, the court examined the parties’ lawyers’ rates and the time properly spent on the case. The court explained:

Costs awards should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties, rather than any exact measure of the actual costs to the successful litigant. It is not appropriate to simply take the number of hours spent by counsel on a particular matter and multiply those hours by a determined hourly or per diem rate.

The court concluded that the time spent by the mother’s counsel had to be discounted in this case, given that much of her evidence was not relevant to the issues that were decided (as noted above).

Ultimately, the court ordered the father to pay the mother costs in the amount of $15,000.

Lessons Learned

Courts are now employing costs orders as a tool to further the efficient and orderly administration of justice. As the court in this case explained, determining the amount of costs is not simply a mechanical exercise. While a successful litigant is still presumed to be entitled to costs, other factors, such as the reasonableness of the parties’ behaviour, weighs heavily in determining the final award. As a result, it is important to keep these factors in mind when involved in a family law proceeding.

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