“Rule 24 [of the Family Law Rules] created a new framework for determining costs in family law proceedings. The presumptive nature of rule 24 has significantly curtailed the court’s discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in MacDonald v. Magel, 2003 CanLII 18880, 67 O.R. (3d) 181, 176 O.A.C. 201, 231 D.L.R. (4th) 479, 43 R.F.L. (5th) 149, [2003] O.J. No. 3707, 2003 CarswellOnt 3606, held that, while the rules have not completely removed a judge’s discretion, the rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs. Courts must not only decide liability for costs, but also the amount of those costs.
In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 CarswellOnt 2475, at paragraph 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
| (1) | to partially indemnify successful litigants for the cost of litigation; | |
| (2) | to encourage settlement; and | |
| (3) | to discourage and sanction inappropriate behaviour by litigants. |
The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579, 71 O.R. (3d) 291, 188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 CarswellOnt 2521 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.
In Delellis v Delellis and Delellis, 2005 CanLII 36447, 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 CarswellOnt 4956, Justice David R. Aston states the following at paragraph [9]:
| . . . recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs. . . . Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant . . .” |