Who Pays Legal Costs in Ontario Family Court? Costs and Offers

Family court can be expensive, and many people worry about being ordered to pay the other side's legal bills. Costs are the court's way of deciding who bears some of the money spent on a step in the case, and the rules are more detailed than most people expect.

This article explains how costs work under the Ontario Family Law Rules, when the usual rule changes, and how a written offer to settle can affect the result. The costs consequences of offers are set out in rule 24(12) and (13). Older guides may describe earlier versions of the rules, so it is worth confirming that what you are reading is current.

The starting point: the winner is presumed to get costs

Under Family Law Rules r. 24(3), there is a presumption that a successful party is entitled to the costs of a step in a case. The court decides costs promptly after each step, or reserves them for later.

A presumption is a starting point, not a guarantee. A judge can depart from it, and whether costs are owed is a separate question from how much they will be.

When the usual rule changes

• Divided success: if success in a step is divided, the court may apportion costs as appropriate.
• A winner who behaved unreasonably: a successful party who behaved unreasonably during a step may be deprived of all or part of their costs.
• Bad faith: if a party acted in bad faith, the court must decide costs on a full recovery basis, and those costs are payable immediately.
• A party who does not appear or is not prepared: the court must award costs against that party unless it orders otherwise in the interests of justice.
• Child protection cases: under the current rule 24, the presumption that the successful party gets costs does not apply.

Because these exceptions turn on the facts of each step, it is worth getting advice on how they might apply to your situation.

How the judge sets the amount

In setting the amount, the court may consider the reasonableness and proportionality of each party's behaviour, the time spent, any written offers (including offers that do not meet r. 24(12)), legal fees and rates, expert fees and other properly paid expenses. All of this is weighed against the importance and complexity of the issues, along with any other relevant matter.

Claims for fees and expenses must be backed by satisfactory documentation under r. 24(15) and (16). In practice, that means keeping invoices, receipts and time records.

Before each step, the parties must also confer about costs, or make their best efforts to do so. This does not apply where a court order prohibits it or there is a risk of domestic violence.

Written offers to settle and costs

An offer to settle must be signed personally by the party making it and by their licensed representative. Making, withdrawing, accepting and rejecting offers carry the costs consequences set out in rule 24.

• Withdrawing: the party who made the offer may withdraw it by serving a notice of withdrawal at any time before it is accepted.
• Accepting: the only valid way to accept an offer is to serve an acceptance on the party who made it.
• Time limit: an offer may not be accepted after the court begins to give a decision.

Judges generally do not see offers until after they have decided the issues. The exception is a binding judicial dispute resolution (JDR) hearing.

When an offer leads to full recovery of costs

Under r. 24(12), a party who made an offer is entitled to costs up to the date the offer was served, and full recovery of costs from that date, if all of the following apply:

• For a motion, the offer was made at least 1 day before the motion date.
• For a trial or other hearing, it was made at least 7 days before the hearing date.
• The offer did not expire and was not withdrawn before the hearing started.
• The offer was not accepted.
• The party obtained an order as good as or better than the offer.

The party claiming this benefit has the burden of proving that the order is as good as or better than the offer. Even an offer that misses one of these conditions can still be considered by the judge when setting the amount of costs.

What to do next

• Keep invoices, receipts and time records so any costs claim can be documented.
• Raise costs with the other side before each step, unless there is a court order against it or a risk of domestic violence.
• If you are thinking of making or answering an offer, get advice on timing, signing and wording before you serve anything.
• Note the dates: an offer must be served early enough, and cannot be accepted once the court starts giving its decision.

A lawyer can look at your court, the type of step and the offers already made, and explain how costs may play out.

Frequently asked questions