- There is a presumption that the successful party is entitled to the costs of a step in the case.
- Bad faith requires the court to decide costs on a full recovery basis, payable immediately.
- Missing a step or arriving unprepared can lead to a costs award against you unless the court orders otherwise.
Worrying about costs is common in family disputes. Even if you are doing your best, you may wonder whether losing a motion or a trial means paying the other person's legal expenses.
In Ontario, costs are governed by rule 24 of the Family Law Rules. This article explains the general approach, the situations that push costs up or down, and what you can do to reduce the risk.
The starting point: the winner is presumed to get costs
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. So costs can come up at a motion, a conference or a trial, not only at the end.
There is an important exception. Under the current rule 24, the presumption that the successful party gets costs does not apply in child protection cases. If your case involves a children's aid society, a lawyer can explain how costs work in that setting.
Situations where the result changes
| Situation | What the rules say |
|---|---|
| Divided success | The court may apportion costs as appropriate. |
| Winner behaved unreasonably | A successful party may be deprived of all or part of their costs. |
| Bad faith | The court must decide costs on a full recovery basis, payable immediately. |
| Not present or not prepared | The court must award costs against that party unless it orders otherwise in the interests of justice. |
In other words, winning does not always mean getting costs, and losing is not the only way to be ordered to pay them. How you act during the case matters.
How the amount is decided
When 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 professional fees and properly paid expenses, all relative to the importance and complexity of the issues. It may also consider any other relevant matter.
Claims for fees and expenses must be backed by satisfactory documentation. Keeping organized records of what was paid is therefore important if you expect to claim costs.
Written offers are part of this picture. A party who made an offer may be entitled to full recovery of costs from the date the offer was served if the conditions in rule 24(12) are met, including obtaining an order as good as or better than the offer.
For a motion, the offer must have been made at least 1 day before the motion date. For a trial or other hearing, it must have been made at least 7 days before the hearing date. It also must not have expired or been withdrawn before the hearing started, and it must not have been accepted. The party claiming the benefit of the offer has the burden of proving that the order is as good as or better than the offer.
An offer must be signed personally by the party making it and by their licensed representative. The party who made it may withdraw it by serving a notice of withdrawal at any time before it is accepted, and 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. Except at a binding judicial dispute resolution hearing, the judge sees the parties' offers only after deciding the issues.
Conferring about costs and following orders
Before each step, the parties must 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.
Failing to obey an order can also lead to costs. The court may make any order it considers necessary, including costs, a penalty or fine, dismissing a claim, striking out documents, or a contempt order.
What to do next
- Attend every court step and prepare for it, since not appearing or being unprepared can lead to costs against you.
- Follow every court order carefully.
- Respond to the other side's communications in a reasonable way, because behaviour is part of the costs analysis.
- Consider a written offer to settle, and consider any offer you receive seriously.
- Keep receipts and records of legal fees and expenses.
- Ask a lawyer about your own situation, especially if there are allegations of bad faith or your case involves child protection.
If you want information or advice before a step, there are options. Family Law Information Centres are free and give information on separation, divorce and court processes, though their coordinators do not give legal advice. Legal Aid Ontario duty counsel and advice counsel at family courthouses may give 20 minutes of free advice, whether or not you are eligible for legal aid. The Law Society Referral Service can give you the name of a lawyer in your community and up to 30 minutes with that lawyer at no charge. Availability can vary by courthouse, so check with the court office.
Frequently asked questions
If I lose, do I automatically pay the other side's legal bills?
Not automatically. The starting point is that the successful party is presumed entitled to costs, but the court can apportion costs if success is divided and can reduce them if the winner behaved unreasonably.
What happens if a judge finds 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.
Can I be ordered to pay costs for missing a court date?
Yes. If a party does not appear at a step or is not prepared, the court must award costs against that party unless it orders otherwise in the interests of justice.
Do these costs rules apply in child protection cases?
The presumption that the successful party gets costs does not apply in child protection cases. Because other rules may still matter, a lawyer can confirm how costs are likely to be handled in your case.
Sources
- Ontario.ca – Family Law Information Centres — ontario.ca
- Ontario Court of Justice – Before going to court — ontariocourts.ca
- Superior Court of Justice – Finding Legal Help and Representation — ontariocourts.ca
- e-Laws – O. Reg. 114/99 Family Law Rules (Word version) — Ontario e-Laws
- Superior Court of Justice – The Steps in a Family Case — ontariocourts.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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