“General principles established by courts approaching and applying those legislated provisions include the following:
a. It is not true to say that costs in family proceedings generally should approach full recovery. Nor are judges deciding matters governed by the Family Law Rules constrained by the “partial indemnity” and “substantial indemnity” scales of costs frequently applied in relation to litigation governed by the Rules of Civil Procedure. To the contrary, no cost scales are mentioned in the Family Law Rules, and those rules provide that a judge may increase or decrease what might otherwise be an appropriate quantum of costs, depending on factors such as the conduct of the parties and the presence or absence of offers to settle. The Family Law Rules demand flexibility in examining the list of factors set forth in Rule 24(11), without any assumptions about categories of costs and the court fixing costs at some figure between a nominal amount and full recovery, bearing in mind that modern cost rules are designed to foster three fundamental purposes: partial indemnification of successful litigants for the cost of litigation; encouraging settlements; and discouraging and sanctioning inappropriate behaviour by litigants. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs to be awarded. At the end of the day, cost awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party or parties. See: Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.), at paragraph 4; M.(C.A.) v. M.(D.), 2003 CanLII 64334 (ON SC), [2003] O.J. No. 3060 (C.A.), at paragraph 42 Serra v. Serra, 2009 ONCA 395 (CanLII), [2009] O.J. No. 1905 (C.A.), at paragraphs 8 and 12; Costa v. Perkins, [2012] O.J. No. 2400 (Div.Ct.), at paragraph 50; Beaver v. Hill, 2018 ONCA 840, at paragraphs 8-13; and Brennan v. Fournie, 2022 ONSC 1491, at paragraphs 12-13.
b. It is an error to refuse to award costs to a successful party where the successful party has not behaved unreasonably during the case or success was not divided. See Wylie v. Leclair, 2003 CanLII 49737 (ON CA), [2003] O.J. No. 1938 (C.A.), at paragraph 24.
c. “Divided success” does not necessarily mean “equal success”, and “some success” may not be enough to have an impact on the appropriate cost determination. Most family law cases involve multiple issues, and not all issues are equally important, equally time-consuming or equally expensive to determine. Moreover, while comparative success can be assessed in relation to specific issues, it also can be assessed globally in relation to the whole of a case. See Scipione v. Del Sordo, 2015 ONSC 5982 (CanLII), [2015] O.J. No. 5130 (S.C.J.), at paragraph 68.
d. Consideration of settlement offers is relevant not only to possible determination of relative success, but also to an assessment of whether parties have behaved reasonably. In particular, in looking at reasonableness and unreasonableness, it is necessary to consider any offers to settle which either party has or has not made. It normally is considered unreasonable behaviour for a party not to make a settlement offer. See Fisher v. Fisher, [2015] O.J. No. 1532 (S.C.J.), at paragraph 22; and Palod v. MacDonald, [2018] O.J. No. 4180 (S.C.J.), at paragraph 23.
e. In considering party behaviour in the determination of cost awards, courts also have emphasized, (as they have in the context of substantive determinations), the fundamental importance of parties making honest and complete financial disclosure. Where a party fails to comply with his or her “cornerstone” obligations in that regard, effectively forcing an opposing party to embark on litigation to obtain such disclosure, such inadequate financial disclosure usually entails cost sanctions, (e.g., awards sometimes approaching full recovery, even in cases falling short of “bad faith”), as an appropriate means of discouraging such behaviour. See, for example: Rondelet v. Neff, 2011 ONCJ 407 (CanLII), [2011] O.J. No. 3911 (O.C.J.), at paragraph 21; and Benzeroul v. Issa, [2017] O.J. No. 5385 (S.C.J.), at paragraph 32(d).
f. Although a comparison of the time devoted to a matter by each party forms part of the inquiry into reasonableness of the amount claimed, it should be remembered that opposing counsel are not expected or required to spend the same amount of time on a case, that the determination of costs is not a purely mathematical exercise, and that the overriding principle is reasonableness. See Fielding v. Fielding, 2014 ONSC 100 (CanLII), [2014] O.J. No. 38 (S.C.J.), at paragraphs 24-25, affirmed 2015 ONCA 901.
g. The financial means of the unsuccessful party may be a relevant matter for consideration in the exercise of a court’s discretion regarding costs in the family law context. In particular, in certain cases it may be appropriate, in the exercise of the court’s overriding discretion, to reduce the quantum of costs that a party will have to pay because of their financial condition. However, the principle does not apply in reverse. In particular, there is no principle relating to costs that requires wealthier individuals to pay more for costs for the same step in a proceeding than less wealthy ones. See M.(C.A.) v. M.(D.), supra, at paragraph 43; and Beaver v. Hill, supra, at paragraph 18.”