In a family law dispute that began in 2007, the mother sought retroactive child support and solicitor-client Costs (including Costs arising from over 25 Court appearances and multiple Actions in both the Court of Queen’s Bench and Provincial Court). Jones J. granted the mother’s Application for retroactive child support, and then turned to the issue of Costs.

Jones J. explained that the general rule governing Costs Awards, described in Rule 10.29(1), is that the successful party is generally entitled to Costs payable forthwith, and that the Rule applies equally in family law proceedings. However, His Lordship noted that Courts exercise substantial discretion in assessing Costs. Pursuant to Rule 10.31, the Court may consider any matter “related to the question of reasonable and proper costs that the Court considers appropriate”. Further, Rule 10.33(2) lists a number of factors that the Court may consider “in deciding whether to impose, deny or vary an amount in a costs award”.

The majority of the Costs sought by the mother related to interlocutory custody and access Applications that were heard by other Judges and had never been finally determined at Trial. His Lordship found that it was not possible to “engage in a re-trial in order to determine what the outcome might have been and to what extent she would have been successful”, and commented that the mother should not have waited until custody was no longer an issue to advance a claim for Costs in respect of all of the Actions. Further, while the mother argued that the father had engaged in misconduct “throughout all of the proceedings”, Jones J. found that neither party’s conduct supported an award for Costs in the circumstances. As such, Jones J. declined to award Costs and disbursements respecting the earlier interlocutory Applications. His Lordship also declined to award Costs for the proceedings in Provincial Court, and noted that there appeared to be no authority for the premise that the Court of Queen’s Bench had jurisdiction to award Costs in respect of Provincial Court proceedings.

Finally, Jones J. considered whether solicitor-client Costs should be awarded in respect of the mother’s successful Application for retroactive child support or any previous Applications involving the parties. His Lordship explained that solicitor-client Costs may be appropriate where a party has engaged in “reprehensible, scandalous or outrageous conduct”. Here, while the matter was fiercely contested, Jones J. found that the father had not engaged in litigation misconduct and as such there was no reason to depart from the general rule for Costs under Rule 10.29(1). However, His Lordship directed the parties to provide written submissions regarding Costs of bringing the matter of retroactive child support and Costs to Trial.