This was a Costs Decision following the outcome in a Streamlined Family Trial, involving a parenting and support dispute between two separated parents. The father claimed substantial success and an Award of double Costs, asserting that he bettered one or more formal offers. The mother argued there was mixed success so the Parties should bear their own Costs.

Justice Lema reviewed and applied the general costs framework under Rules 10.29, 10.31 and 10.33, which establish that a successful party is presumptively entitled to costs, but also grants the Court discretion to vary that presumption. Substantial success, not absolute success, is the applicable threshold, particularly in family law matters. However, in the family law context, determining which party achieved substantial success is inherently complex due to the multiple, evolving, and often intertwined issues involved. There is no simple set of rules for assessing success, it must be assessed on a case-by-case basis.

Lema J. emphasized that success must be assessed globally, taking into account both quantitative and qualitative factors including analyzing the success on various issues and their monetary value, the importance and complexity of the issues, and the alignment of the outcomes with the parties’ Trial positions. To determine which Party had substantial success in this case, Justice Lema conducted an analysis issue by issue. The Court found that the father was successful on the impact of shared account deposits, the valuation of the matrimonial home, and the denial of credit for the mother’s post-separation mortgage payments. The mother was successful on imputed income, unexplained deposits, and the treatment of tax-related interest and penalties. There were also other issues that were largely uncontested or resulted in true mixed success.

Justice Lema determined that the Trial resulted in mixed success and directed that each Party bear their own Costs, including the costs of the Costs submissions. Lema J. noted, however, that even if the father had substantial success, the Court would still direct that each Party bear their own costs because of the father’s poor litigation conduct.