“One of the purposes of costs is to change behaviour.
The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2.
Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Sarkos, 2004 CarswellOnt 3317, 2004 OCJ 141, 132 A.C.W.S. (3d) 1112 (Ont. Ct.); Peers v. Poupore, 2008 ONCJ 615 (CanLII), 2008 O.N.C.J. 615 (CanLII) (Ont. Ct.), para. 62.
The decision respecting liability is ultimately a discretionary one that must be informed by the overall conduct of the parties and all of the circumstances and dynamics of the case. One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. A careful consideration of the conduct of the parties is therefore a key component to the costs analysis. The court has an obligation to ensure that litigation is not utilized as a tool to harass parties, and that the resources of the justice system are not unduly drained by unmeritorious claims: Beaver v. Hill, 2018 ONSC 3352 (CanLII) (Ont. Sup. Ct.), para 38.
Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly, for the purposes of this case, oblivious to the mounting costs of the litigation: Heuss v. Sarkos, supra, 2004, (Ont. Ct.), para. 20.
Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour: Heuss v. Sarkos, supra, 2004, (Ont. Ct.), para. 20.
Rule 24 (5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in determining quantum, Rule 24 (12)). It reads as follows:
DECISION ON REASONABLENESS
i. (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.
A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the Family Law Rules: Osmar v. Osmar, 2000 CanLII 20380 (ON SC), 2000 CarswellOnt 2343, 2000 CarswellOnt 2343, [2000] W.D.F.L. 660, [2000] O.J. No. 2504, [2000] O.T.C. 979, 8 R.F.L. (5th) 387, 98 A.C.W.S. (3d) 137 (Ont. Sup. Ct.), para. 11. The court need not find that bad faith or other special circumstances exist to make a costs award approaching substantial or full recovery: Sordi v. Sordi, 2011 ONCA 665 (CanLII), 2011 ONCA 665 (Ont. C.A.), para. 21; Beaver v. Hill, supra, 2018, (Ont. Sup. Ct.), para 41.
When awarded on a full recovery scale, costs can serve to express the court’s disapproval of unreasonable conduct during the litigation: Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA), 2002 CarswellOnt 2263, 2002 C.L.L.C. 210-027, 17 C.C.E.L. (3d) 207, 161 O.A.C. 302, 60 O.R. (3d) 474, 215 D.L.R. (4th) 31 (Ont. C.A.), para 76.
The unreasonable conduct of a litigant is a factor in both the awarding of costs and in fixing the amount of costs.
It must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered with the requirement that the parties take a clear-headed look at their case before insisting on their day in court. The court must sanction this behaviour clearly, or it will invite more of this behaviour.”