10.33: Court considerations in making costs award

Case Summary

Following a Judgment relating to child support in a family law matter, the parties returned before Justice Graesser for a determination as to Costs. The husband argued that Costs should be awarded to him because he was the successful Party. The wife argued that each party should bear their own Costs as success was mixed.

Justice Graesser noted that, pursuant to Rule 10.33(1), Costs are in the discretion of the Court, and that the “loser pays” principle also applies to family law matters. Justice Graesser stated that the Ms. Emslie had ultimately prevailed by “receiving an order in her favour in a significant amount”. Graesser J. observed that, in some cases, the Court has apportioned Costs based on a ratio of success, while in others, Courts have awarded full Costs to the successful party even if they were unsuccessful on a small number of issues. His Lordship held that Costs should not be apportioned in this case: Mr. Emslie had been successful on a number of issues, but he had also unnecessarily lengthened the Action which is a factor listed under Rule 10.33(2)(a) as a consideration in making a Costs award. As a result, Justice Graesser held that each party should bear their own Costs.

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