“The respondent seeks leave to cross-appeal costs.
I will address the respondent’s submissions, but first I provide background on the law with respect to costs in family law as summarized by this court in Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65 at paras. 67-69. The principles are:
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- Costs awards are “quintessentially discretionary”;
- A costs award should only be set aside on appeal if the court below “has made an error in principle or if the costs award is plainly wrong”;
- There is “significant deference” to costs awards in relation to spousal support orders. This approach promotes finality in family law litigation.
- A material error, a serious misapprehension of the evidence or an error in law would be required for this court to intervene.
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The Family Law Rules, O. Reg. 114/99 emphasize these principles in r. 24(12), which contains a list of factors the court shall consider and balance subject to its overriding discretion. The court may exercise its discretion to award costs. Rule 24(1) creates a presumption that a successful party will be granted costs. At the same time, r. 24(4) gives the court the discretion to deprive a successful party of “all or part of” his or her costs if the party behaved unreasonably. Likewise, r. 24(6) gives courts discretion to apportion costs when success is divided. This is in contrast to r. 24(8), which requires the court to order full recovery of costs upon making a finding of bad faith.
The intention of the rules is clear: absent bad faith, the ultimate decision rests with the trial judge.”