10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

The matter before Bercov J. was for a determination of Costs in the context of a family matter. Each party sought an award of Costs, as they believed they were the most successful party, even though there was mixed success throughout the Action. Further, the parties claimed that the conduct of the other party was unreasonable, improper and wasted judicial resources, justifying a Costs Award above Schedule C.

The legal principles pertaining to Costs were not at dispute. Bercov J. used the following principles to reach her conclusion: (1) Rule 10.29 sets out the general rule that the successful party is presumptively entitled to Costs; (2) the general rule applies in family matters in the same manner as in civil matters; (3) success in family matters means substantial success, not absolute success; (4) substantial success is assessed by looking at overall results of what was initially claimed; (5) success can be established on a finding that a party was successful on the most important issue litigated; (6) misconduct in the litigation can warrant enhanced Costs; (7) Costs are discretionary and discretion must be exercised in a principled way; and (8) non-exhaustive factors enumerated in Rule 10.33 help guide the discretion.

Bercov J. reviewed the procedural history of the Action and determined that the Trial took considerably more time than needed, with both parties incurring significantly more fees than necessary. The Court concluded that each party played a role in the length and expense of the Action, and at times, both parties advanced unreasonable positions given the law and the facts. The Court was critical on the Parties for not conceding to issues that should have been conceded and that the Parties spent considerable resources litigating issues that should have been resolved by agreement. Lastly, after looking at the overall result of the claims brought forth by each party, Bercov J. disagreed that either party achieved substantial success.

Therefore, Bercov J. concluded that the circumstances were not appropriate to award Costs to either party.

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