“Family Law Rules 18 and 24 are most pertinent to a costs determination. Rule 18 relates to offers to settle. Rule 24 lists the factors that a judge must consider when determining costs.
While these rules have not eliminated judicial discretion, they nonetheless circumscribe the broad discretion previously granted to the courts in setting costs: Jackson v. Mayerle (2016), 2016 ONSC 1556 (CanLII), 130 O.R. (3d) 683 at para. 19 (S.C.J.).
Rule 24(1) is the starting point in a costs analysis: Scipione v. Del Sordo, 2015 ONSC 5982 (CanLII), [2015] O.J. No. 5130 at para. 18 (S.C.J.). It provides that there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case, or appeal. The presumption in Rule 24(1) can, however, be rebutted if the successful party has behaved unreasonably during the case or if success is divided: Wylie v. Leclair, 2003 CanLII 49737 (ON CA), [2003] O.J. No 1938, at para. 24 (C.A.).
Consequently, Rule 24(1) must be considered in conjunction with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate: Arthur v. Arthur, [2019] O.J. No. 3494 at para. 14 (S.C.J.)
Justice Pazaratz wrote at paragraph 66 in Jackson v. Mayerle that, “[d]ivided success” does not necessarily mean “equal success.” And “some success” may not be enough to impact on costs.”
Justice D. Chappel articulated the court’s task at this point at paragraph 14 of Arthur v. Arthur:
The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239 (CanLII), [2012] O.J. No. 1830 (O.C.J.))
Determining Success
Justice Pazaratz wrote the following about this process at paragraph 22 of Jackson v. Mayerle:
“To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made (Lawson v. Lawson, [2008] O.J. No. 1978, 2008 CanLII 23496 (S.C.J.)).
Therefore, to determine which of the parties has been successful or, if both were to some extent, I begin by comparing the order I made to the parties’ settlement offers.”