“In Beckett v. Beckett, 2010 ONSC 2706 (CanLII), [2010] O.J. No. 1957 (S.C.J.), Pazaratz J. considered the issue of the affordability of a costs award at the end of a five day equalization trial. The parties had shared custody of the children. In determining costs, he confirmed that “any other matter” in Rule 24(11)(f) included the “affordability and enforceability of a costs order” [paragraph 33]. However, he also confirmed that the real issue is the effect of the costs award on the financial ability of the parties to care for the children. He noted that, although a costs award would “jeopardize [the Respondent’s] ability to provide for her children”, that “we must not lose sight of the fact that unrecovered legal fees also interfere with the Applicant’s ability to provide for his children during the significant periods of time they are with him” [paragraphs 37 and 38]. Because both parties had almost equal care of the children, he decided that costs would follow the event.
This was confirmed by the Court of Appeal in C.A.M., where Rosenberg J.A. stated at paragraph 45 that the costs claimed by the Respondent “was money he had to pay to defend this litigation that would otherwise have been available, at least in part, for the care of the child.”
Accordingly, although the affordability of a costs award is a factor in the awarding of costs, this can work both ways, particularly where the needs of a child or children are in issue. While costs payable by a custodial parent may be mitigated by the needs of the child in that party’s care, the opposite may apply where a successful party, as in the present case, has custody of the child. The legal expenses paid by Mr. Polak for his representation at this trial will affect the financial means with which he can bear the costs of the children in his care. This is particularly so where the child support payable by the Applicant is set at a minimal amount based upon income imputed to the Applicant as in the judgment.
Therefore, even though Mr. Polak may be financially better off than is the Applicant, he also has the burden of financially meeting the children’s needs with little assistance from the Applicant. He is also obliged to pay spousal support to the Applicant. Any reduction of costs payable to him would also directly affect his financial ability to meet the children’s needs.
Finally, it must be noted that the means of the unsuccessful party may not be used to shield his or her liability for costs where that party has acted unreasonably: see Parsons v. Parsons, 2002 CanLII 45521 (ON SC), [2002] O.J. No. 3034 (S.C.J.) at paragraph 12.”