- In family court there is a presumption that a successful party gets costs.
- A court can deprive a successful party of costs if that party behaved unreasonably.
- A written offer to settle can affect costs, especially if made at least seven days before trial.
- Late financial disclosure is one example of unreasonable conduct that can reduce a costs award.
Many people assume that the spouse who earns more, or the spouse who is more at fault, automatically pays for everything. That is not how family costs rules are described. Your own lawyer's bill is one thing. A costs award, where a court orders one party to pay part of the other's expenses, is another.
This article explains the starting point for costs in Ontario family cases, what can move the result, and how offers to settle fit in. It does not set out lawyer rates, since those depend on the lawyer and the work involved.
Your lawyer's bill versus a costs award
You are responsible for what you agree to pay your own lawyer. A costs award is different. It is a court order that one party pay some of the other party's legal costs.
Arbitrators can also order one party to pay part of the other's costs. How much might be ordered in your case depends on the facts, so it is worth confirming with a lawyer.
The starting point in family court
Rule 24(1) of the Family Law Rules creates a presumption that a successful party gets costs. Rule 24(4) lets the court deprive a successful party of costs if that party behaved unreasonably. Rule 24(11) lists the factors the court looks at.
The Court of Appeal for Ontario has said courts give significant deference to family costs awards. In practical terms, it is hard to overturn a costs decision on appeal, so the trial or motion judge's view usually stands.
Who counts as successful is not always obvious. A case may have several issues, such as property, support and parenting, and each side may win on some. How a judge weighs that is something a lawyer can discuss with you based on your facts.
What can change the result
- Unreasonable conduct. A successful party who behaved unreasonably can lose the benefit of the presumption. Unreasonable conduct such as late financial disclosure can reduce a costs award.
- Financial disclosure. The Court of Appeal calls the duty to disclose financial information the most basic obligation in family law.
- Offers to settle. A written offer can matter even when it does not trigger the strongest cost consequences.
- The factors listed in Rule 24(11).
In practice, being organized and open about your finances is both a good strategy and a costs protection. Keep copies of what you send and when you send it.
How offers to settle affect costs
An offer to settle is a written proposal to resolve some or all of the issues. Under Rule 18(14), a party who makes an offer at least seven days before trial that is not accepted, and who then gets a result as favourable or better, can get full recovery costs. Under Rule 18(16), the court may still consider any written offer, its date and its terms, even if Rule 18(14) does not apply.
| Situation | Timing or effect |
|---|---|
| Offer for trial | Must be made at least 7 days before trial |
| Offer for a motion | Must be made at least one day before the motion |
| Offer not accepted, and you do as well or better at trial | May support full recovery costs |
| Offer that does not meet Rule 18(14) | The court may still consider it |
Because the wording and timing matter, it is wise to have a lawyer review an offer before you send it.
Other ways costs come up
- Court fees. Filing an application is $214.00 in the Superior Court, and the Ontario Court of Justice charges no filing fees.
- Fee waivers. A waiver does not cover fees paid to lawyers or mediators, or costs a court has ordered you to pay another party.
- Mediation. Ontario courthouses offer free mediation on the court date for parenting, support and property issues, and low-cost off-site mediation is offered on a sliding scale based on income and number of dependents.
- Interim advances. In one Ontario case, a consent order required one spouse to advance $75,000 in interim disbursements to the other, without prejudice to whether it would be credited against equalization.
That last point shows that who pays at one stage does not always decide who finally bears the cost.
What to do next
- Ask any lawyer you meet how fees are charged, what is billed separately, and how often you will get an account.
- Gather your financial documents early so disclosure is complete and on time.
- Keep a dated record of every offer made or received.
- Consider mediation before spending on a hearing.
- If you cannot afford filing fees, look at a fee waiver.
Costs rules are applied to the facts of each case. A lawyer can explain how they might apply to yours.
Frequently asked questions
Do spouses split legal fees in a divorce?
Each spouse generally deals with their own lawyer's account, and a costs award is a separate court order. The starting point in a family case is a presumption that a successful party gets costs. Whether and how much depends on the facts.
Can I lose the right to costs even if I win?
Yes. Rule 24(4) lets the court deprive a successful party of costs if that party behaved unreasonably. Late financial disclosure is one example of conduct that can reduce a costs award.
When should I make an offer to settle?
For costs under Rule 18(14), the offer must be made at least seven days before trial. For a motion, an offer must be made at least one day before. A lawyer can help you word it.
Can I appeal a costs decision?
Courts give significant deference to family costs awards, so a costs decision is hard to change on appeal. If you are considering one, get advice quickly, since appeal deadlines apply.
Sources
- Ontario.ca – Family court fees — ontario.ca
- Ontario.ca – File family court documents online — ontario.ca
- Ontario.ca – Have your court fees waived — ontario.ca
- Ontario.ca – Family justice services — ontario.ca
- Ontario.ca – Family arbitration — ontario.ca
- Superior Court of Justice – Steps in a family case — ontariocourts.ca
- Court of Appeal for Ontario – Fielding v. Fielding, 2015 ONCA 901 — ontariocourts.ca
- Court of Appeal for Ontario – Whalen-Byrne v. Byrne, 2017 ONCA 729 — 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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