When parties become involved in legal proceedings in the family court the question often arises whether the successful party will be entitled to be reimbursed for their costs. While there is a presumption under the Family Law Rules that a successful party is entitled to costs of a motion, enforcement, case or appeal, the court has discretion on the issue.
First off, it is important to establish that while a party to a family law matter should be entitled to costs just as in any other types of proceedings, in light of the many non-pecuniary issues that arise in family law and as a result of the fact that matters often conclude with both parties being successful on separate issues, an assessment for costs under the family law presents unique considerations with respect to both entitlement and quantum.
For instance, in cases involving children, custody and access will inevitably be an issue. In making a determination with respect to custody and access for children of a marriage, the court considers the best interests of the children. The best interest of the children is a multifaceted concept which is difficult to define with certainty. As such, the question arises whether a party to family law proceeding should be penalized for wanting to have this issue resolved.
In the family court, it all comes down to reasonableness. Under the Family Law Rules, 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 costs. The courts have established that in making a determination with respect to reasonableness, the relief sought, the bargaining positions of the parties and the timing of any settlement attempts will be vital considerations.
Not only is the very award of costs contingent on the parties’ behaviour, but the quantum of such an award is also influenced by this. Among other things, how much one party will be ordered to pay in the other’s court costs depends on what offers of settlement were exchanged prior to the trial.
While the determination of costs depends on the facts of each case, there is a saying in the law that parties must come to court with “clean hands”. That is, you must conduct yourself in a reasonable and honest manner.