What is the test for a court to award costs in a family law matter?

Ontario, Canada


The following excerpt is from B.B. v. D.F. (No. 2), 1995 CanLII 3845 (ON CJ):

[10] I also had in mind the following principles: 1. There is no doubt that parties are entitled to trial. They are not entitled to a trial without any consequences. Trials are not just costly to the parties but to the Province of Ontario. It is quite proper to use an award of costs to bring home to a party the point that the case should have been settled. (See E.(H.) v. E.(A.) (No. 2), supra.) 2. That the issue in dispute is important to the applicant, even if it did not succeed at trial, is not sufficient reason for a court to refuse the respondent an award for costs. In family law matters, each party’s position is usually important from his or her perspective. (See, for example, Herdman v. Goodfellow (No. 2), supra.) 3. Meagre financial resources do not automatically lead to a conclusion that costs should not be awarded, when costs are otherwise appropriate. If poverty were to have that effect, litigants of limited means would have free rein to pursue lengthy and unnecessary trials without any accountability for their conduct. (See, for instance, E.(H.) v. E.(A.) (No. 2), supra.) This is a particularly relevant factor if serious allegations have been floated and found unsubstantiated by the evidence. (See, for example, H.(P.) v. G.(D.) (No. 3), supra.)

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