Conflicting Decisions Regarding Costs
Anderson v. Anderson 2016 ONSC 7774
This recent decision from the Superior Court of Justice clarifies the confusion for family law counsel in Ontario following the release of the conflicting decisions of the Ontario Court of Appeal in Berta v. Berta 2015 ONCA 918, and Forrester v. Dennis 2016 ONCA 214 regarding costs, and confirms the decision of Jackson v. Mayerle 2016 ONSC 1556 as the go to case for analysis of Rule 24 of the Family Law Rules.
When the Court of Appeal originally released their decision in Berta v. Berta, it was suggested therein that a successful party in family law litigation had the presumption of entitlement to full recovery costs. Subsequently to the release of this decision, the Court of Appeal issued an error regarding this comment, and replaced it with the statement that a successful party is presumptively entitled to costs, however, costs are subject to the factors within Rule 24 of the Family Law Rules, including the factors within Rule 24(11), unreasonable conduct, bad faith, offers to settle, and the reasonableness of the costs the successful party is seeking.
Regrettably, the issuance of the error did not appear on the Court of Appeal website, but it can be found in the report of the case. A few weeks later, the Court of Appeal issued the decision in Forrester v. Forrester, which quoted and relied upon the original Berta decision, and stated that it is the preferable approach for costs to generally reach full recovery, provided the successful party has been reasonable, and the costs are proportionate.
Since the decision was released, counsel and courts in Ontario have been relying upon the decision of the Court of Appeal in Forrester v. Forrester to claim that if their client is the successful party, they are entitled to full costs. In the case at hand, the Court noted the revision of the Berta decision as described above, and confirmed that same was not the law in Ontario. The Court noted that the decision of the Superior Court of Justice in Jackson v. Mayerle provides a complete analysis of the law regarding costs, and the factors within Rule 24 of the Family Law Rules.
In the case at hand, the Applicant was seeking costs from the Respondent in the amount of $11,829.96. The Court found that the conduct of the Respondent was unreasonable, and therefore ought to be discouraged by the court. As such, the Applicant was awarded her actual costs, as claimed. However, the Court’s ruling makes it clear that any presumption of the successful party full costs is subject to the factors set out in Rule 24 of the Family Law Rules. Had the Respondent in this case acted reasonably, this presumption would likely not have applied.