The Plaintiff and Defendant, once married, engaged in a prolonged legal battle involving divorce, child and spousal support, division of family property, and parenting time. The Plaintiff was largely successful, particularly in matters of child support and spousal support, while the division of family property showed mixed success. The Court was thus required to rule on Costs of the Action. Justice Eamon reviewed the proceedings of the past several years in order to ascertain what costs, if any, should be awarded to either party.

Justice Eamon began his analysis by citing the Court’s discretion in awarding Costs provided by Rule 10.29, and further noted that in addition to the Court’s general discretion, a successful party to an Application, a proceeding or an Action is entitled to a Costs Award against the unsuccessful party, subject to a variety of considerations under Rule 10.31. In relation to success, the Court noted that a party need not be successful on each argument or claim to relief, to qualify as a successful party for Costs purposes, and where success is mixed to the extent that it cannot be said that one party was “substantially successful”, no Order should be made as to Costs and the parties will bear their own Costs. The Court acknowledged that it had several options in dealing with cases of mixed success. These included awarding Costs to either party by issue; awarding partial Costs to one party; and, requiring each party to bear their own Costs, and that the factors set out in Rule 10.33 could assist in this determination.

Given that the Defendant was self-represented for significant periods of time during the Action, including the entire Trial and steps taken thereafter, the Court considered the Cost principles as they relate to self-represented litigants. Under Rule 10.31, the Court acknowledged it had the power to award Costs to a self-represented party of an amount or part of an amount equivalent to the fees in Schedule C, but noted that these awards are exceptional.

In relation to the quantum of Costs, the Court reviewed recent appellate decisions on the issue, and noted that appellate decisions conflict on the question of whether Schedule C Costs are presumptive absent exceptional circumstances or are a starting point. Ultimately, on the quantum question, the Court concluded that it was sufficient to use Schedule C as a tool in coming to the appropriate amount.

The Court also addressed solicitor-client Costs, given that each party asked the Court for such an award. The Court reminded the parties that an award of solicitor-client Costs is only available in rare and exceptional cases, and that It has long been recognized that the fact that an Application that has little merit is no basis of awarding solicitor-client Costs. The Court also was aware that it must not base an award of solicitor-client Costs on pre-litigation conduct alone, independent of other circumstances.

Justice Eamon determined that the Plaintiff was substantially successful in the Action, particularly on issues of parenting, child support, and spousal support. The Defendant's conduct, including inadequate financial disclosure and litigation misconduct, significantly influenced the decision on costs. The Court utilized its discretion under Rule 10.31 to award Costs, considering the need to deter misconduct and the efforts required by the Plaintiff to address the Defendant's conduct. The decision also considered the mixed success in property equalization and the Defendant's failure to substantiate claims of misconduct by the Plaintiff. The Court invoked Rule 9.4 in relation to preparing the formal Order.