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Family Law Rules – Rule 24: Costs

Angela Princewill

November 21, 2015

RULE 24:  COSTS

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.  O. Reg. 114/99, r. 24 (1).

NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY

(2) The presumption does not apply in a child protection case or to a party that is a government agency.  O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).

COURT’S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY

(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.  O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(4) Despite subrule (1), 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.  O. Reg. 114/99, r. 24 (4).

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.  O. Reg. 114/99, r. 24 (5).

DIVIDED SUCCESS

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.  O. Reg. 114/99, r. 24 (6).

ABSENT OR UNPREPARED PARTY

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.  O. Reg. 114/99, r. 24 (7).

BAD FAITH

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.  O. Reg. 114/99, r. 24 (8).

COSTS CAUSED BY FAULT OF LAWYER OR AGENT

(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;

(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;

(c) order the lawyer or agent personally to pay the costs of any party; and

(d) order that a copy of an order under this subrule be given to the client.  O. Reg. 114/99, r. 24 (9).

COSTS TO BE DECIDED AT EACH STEP

(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.  O. Reg. 114/99, r. 24 (10).

FACTORS IN COSTS

(11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.  O. Reg. 114/99, r. 24 (11).

PAYMENT OF EXPENSES

(12) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.  O. Reg. 114/99, r. 24 (12).

ORDER FOR SECURITY FOR COSTS

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.

2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.

3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.

4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.

5. A statute entitles the party to security for costs.  O. Reg. 114/99, r. 24 (13).

AMOUNT AND FORM OF SECURITY

(14) The judge shall determine the amount of the security, its form and the method of giving it.  O. Reg. 114/99, r. 24 (14).

EFFECT OF ORDER FOR SECURITY

(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise.  O. Reg. 114/99, r. 24 (15).

FAILURE TO GIVE SECURITY

(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then subrule (15) no longer applies. O. Reg. 322/13, s. 14.

SECURITY MAY BE CHANGED

(17) The amount of the security, its form and the method of giving it may be changed by order at any time.  O. Reg. 114/99, r. 24 (17).

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