“Entitlement and quantum of costs is in the discretion of the judge: Section 13(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Rule 24 sets out the legal framework for cost orders in family cases: Family Law Rules, O. Reg. 114/99 as am.; Mattina v Mattina, 2018 ONCA 867 at para 9.
In determining costs, the parties and court must consider that modern costs rules are designed to foster four fundamental purposes: 1) to partially indemnify successful litigants; 2) to encourage settlement; 3) to discourage and sanction inappropriate behaviour by litigants; and 4) to ensure, as per r. 2(2), Family Law Rules (“FLR”), O. Reg. 114/99 as am, that cases are dealt with justly: Mattina at para 10.
The starting point is that the successful party is presumptively entitled to costs: r. 24(1).
In assessing entitlement, judges must consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct on the part of a successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8) FLR.
Similarly, in assessing quantum, judges are to consider as per r. 24(12) FLR: the conduct of the parties; the time spent by each party; written offers to settle, legal fees charged and counsels’ rates, expert and witness fees, disbursements and other expenses; and any other relevant matter: r. 24(12) FLR.”