Unable to schedule a binding JDR in the wake of COVID-19, the parties to a family law dispute scheduled a non-binding JDR with Justice Phillips and agreed to accept Her Ladyship’s recommendations as final. After the conclusion of the JDR, the Respondent refused to endorse the Consent Orders capturing Justice Phillips’ recommendations, and the Applicant sought Costs.

In consideration of Costs, Justice Phillips noted Her Ladyship’s authority and discretion to make an award pursuant to the JDR agreement reached by the parties, as well as pursuant to Rules 10.30 and 10.31 generally. Further, Costs pertaining to dispute resolution process described in Rule 4.16, or a judicial dispute resolution process described in Rule 4.18, are not ordinarily recoverable absent serious conduct committed in that process, per Rule 10.31(2)(c).

Taking into account the considerations enumerated in Rule 10.33, Justice Phillips observed that the Applicant was largely successful in the proceedings; the issues were of importance and of significant complexity; and her overall conduct tended to shorten the litigation, while the Respondent had unnecessarily lengthened and delayed the litigation through misconduct which had occurred prior to the JDR. Notwithstanding the Respondent’s refusal to accept the result of the JDR as final, contrary to the JDR agreement, Justice Phillips determined that no Costs were payable in respect of the JDR process itself, but was inclined to award a lump sum Costs Award in favour of the Applicant for the balance of the proceedings. Rule 9.4(2)(c) was invoked such that the Respondent was not required to approve the form of Order respecting Costs.