Expensive court battles at heart of many family law disputes

When couples divorce and a child is involved, the issue of custody and access often becomes the centre of dispute. iStock.
When couples divorce and a child is involved, the issue of custody and access often becomes the centre of dispute. iStock.

When couples divorce and a child is involved, the issue of custody and access often becomes the centre of dispute, especially if the split was less than friendly.

Once the dust settles and a family law judge makes a decision then people face another issue that can lead to yet another battle: court costs.

Going to court, especially family law court is not cheap. Add the cost of lawyers, and your bill is bound to be costly.

The question is: how do family law courts determine the issue of costs?

A recent case coming out of the Ontario Superior Court of Justice sheds some light on what courts look at when they decide on cost awards.

In Wallegham v. Wallegham a couple had a dispute over the visitation rights of the father.

The mother had the main care of the child with the father having supervised visits. The father filed a motion to have unsupervised access with the child and to have the visitations be in London, Ont., The court ordered in June 2015 to gradually lessen the supervision of the visits and allowed for the visitations to take place in London.

After the court order the father went after the mother for costs. He claimed the decision was a success for him, which made him entitled to costs. The mother on the other hand disagreed and explained that she had tried to settle costs with the father out of court.

What analysis did the court use to determine the cost award in this case?

Judge Deborah L. Chappel started by looking at s. 131 of the provincial Courts of Justice Act, and s. 24 of the Family Law Rules of Ontario.

The courts of justice act says judges have discretion when making cost awards, whereas the Family Law rules set out what rules a judge should follow when making an award. Amongst those factors are: how the people are behaving, what issues are involved, and the costs involved.

The court also looked at the case Serra v. Serra, which looked at the reasoning of costs awards, which are mainly to discourage bad behaviour, encourage settlements and to reward successful parties.

After looking at all the above factors and more, Chappel determined that neither party was entitled to costs.

Chappel made her decision based on a few factors. She found that the father had a little more success than the mother. However, she also found that the mother and father both were unreasonable in their arguments, that the mother’s settlement offer had been a good one, and that the father should have tried to settle with the mother.

In the end, the most important factors on which the judge based her decision, was not who won or who lost, but the reasonableness of the parties and whether the issue could have been settled out of court.

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