When will the court order costs in custody cases?

In Metz v. Weisgerber Justice Cote points out that no legal authority compels the court to treat costs differently in custody cases than in other cases. Typically costs go to the successful party. Further Justice Cote points out strong reasons for following this rule (I have paraphrased those reasons). 1. Costs encourage the settlement of disputes. 2. To treat equally those proven to be right and those proven to be wrong does nothing to discourage doubtful, unduly prolonged or ill-founded litigation. 3. Not awarding costs would deter meritorious litigants and encourage the unmeritorious ones. 4. The rule in custody cases should be clear just as in all civil cases. Lack of predictability in costs works as a disincentive to settlement and efficiency in litigation. 5. Not awarding costs in custody cases has a disproportionate and negative adverse impact on the parent with the fewer financial resources. Any policy which denies costs makes the deeper pockets many times stronger in litigation than shallower pockets. 6. There should not be a threshold requirement of unreasonable conduct by one party before costs are awarded. To do so would effectively make no costs the default rule in almost all cases because at the start of litigation, when the facts are unknown or unclear, often neither party’s position is significantly unreasonable. If a party only is paid their costs once it is determined that their position is unreasonable then court would be denying costs for most steps in custody suits. 7. At the end of the lawsuit one party’s arguments were better founded than the other. It is not fair that he or she bear alone the litigation expenses created by the opponent’s mistaken position or argument. A costs award is like damages to be reimbursed. 8. Party and party costs does not fully reimburse the winning party. It only represents partial indemnity. The choice then is between partial indemnity or none at all. In a sense, there has already been a compromise amongst a number of competing values and policy choices if party and party costs are awarded to the successful litigant. 9. Finally, a rule which effectively orders no costs in custody cases will have a disproportionate negative effect on the litigant with the fewer financial resources. That parent is more often the mother. Legislation, including rules regarding costs, should be interpreted in accordance with fundamental charter values.