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The recent decision of Snih v. Snih, 2007 CarswellOnt 3549 (Ont. S.C.J.) (“Snih”) requires some commentary. The decision was good on its facts. The wife put the parties through a needless trial, but in the end the husband won on EVERY issue. It is a credit to the Justice Campbell (the Justice presiding over this case) that the husband/father was given custody of the child(ren). However, I must take issue with the decision on costs.

This case made it all the way to a 5 day trial. There is a large cost to a 5-day trial. Prior to the trial, the husband had put forth an offer to settle that ended up being better for the wife than what the court eventually ordered. Rule 24(1) of the Family Law Rules states the following regarding Offers to Settle: “There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal”.

The wife was ordered to pay costs in the amount of $18,000.00 where the husband was seeking $29,147.00. The amount ordered represents a serious discount from what the husband spent on the trial. The court under Rule 24(1) retains the discretion to consider factors such as impecuniosity when making cost orders. But I believe that this decision is going too far. This allows people with no money, but who are funded by Legal Aid or self represented, to drag other people through the court system with little or no cost consequences to themselves. The husband was ready to settle, but because the wife refused to do so he is stuck with the bill of approximately $11,000.00 that the wife does not have to compensate him for despite her unreasonable conduct.

I can’t help but wonder what if the genders were reversed? What if it was the husband who had dragged the wife through a needless court trial and in the end lost on all issues? I do not believe the courts would be so forgiving. From my experiences courts are a lot more lenient on impecunious women than men. This is not fair. Impecuniosity should not be relevant to the issue of costs, regardless of gender. Accordingly, I disagree with the position of this Court and the Court of Appeal on this issue.