Family Court Costs Orders in Ontario: Who Pays Whom

Many people in family court worry less about losing than about being ordered to pay the other side's legal costs. A costs order is a payment one party is ordered to make toward the other's expenses of a step in the case.

Costs are governed by rule 24 of the Family Law Rules, O. Reg. 114/99. The rule was replaced in recent amendments, so older information you find online about offers and costs may be out of date. This article explains the general approach and when it changes. A lawyer can tell you how it applies to your facts.

The starting point: the winner usually gets costs

Family Law Rules r. 24(3) creates 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 position, not a final answer. It means the judge begins from the idea that the winner is paid something, then looks at whether anything in the case points another way. Costs are usually decided step by step, so you can face a costs order after a motion long before the case ends.

When the usual result changes

The practical lesson is that conduct matters, because unreasonable behaviour, bad faith, and not attending or not being prepared can each change the costs result. How this applies depends on your situation, so it is worth confirming with a lawyer.

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, legal fees and rates, other properly paid expenses, all relative to the importance and complexity of the issues, plus any other relevant matter.

Claims for fees and expenses must be backed by satisfactory documentation. If you are asking for costs, keep invoices and records. If you are facing a claim, you can look closely at whether the amount is proportionate to what was at stake.

Offers to settle and costs

An offer must be signed personally by the party making it and by their licensed representative. The making, withdrawal, acceptance and rejection of offers carry the costs consequences set out in rule 24.

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 these apply:

• For a motion, the offer was made at least 1 day before the motion date; for a trial or other hearing, 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 the benefit of an offer has the burden of proving that the order is as good as or better than the offer. Except at a binding judicial dispute resolution hearing, the judge sees the offers only after deciding the issues.

An offer can be withdrawn by serving a notice of withdrawal at any time before it is accepted. The only valid way to accept an offer is to serve an acceptance on the party who made it. An offer may not be accepted after the court begins to give a decision.

What to do next

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

• Read every court order and follow it. Disobeying one can lead to separate consequences, including costs.
• Attend each step, and be prepared.
• Keep invoices, time records and receipts for fees and expenses.
• Talk to the other side about costs before each step, unless an order or safety concerns prevent it.
• Get advice before making or responding to an offer to settle.
• Ask duty counsel or a lawyer about your specific risk if you are unsure.

Frequently asked questions