Can a successful party obtain a costs award even in circumstances not falling within subrule 24(4)?

While it is not necessary to decide the issue in this case, I think it is arguable that a successful party may not obtain a costs award in his or her favour even in circumstances not falling within subrule 24(4). There may be circumstances aside from the unreasonableness of the successful party's conduct that rebut the presumption. See Ramsay v. Ramsay, at para. 10.

I am also of the view that the financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18. Thus, while subrule 24(11) enumerates a number of factors that must be taken into account, the person setting the amount of the costs is directed to take into account "any other relevant matter". I agree with Aston J. in Sims-Howarth, at para. 4, that the "Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs". In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant, at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (QL) (S.C.J.), at para. 11. In fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child. That, however, was not a consideration in this case. The mother is not the custodial parent. [page195]

I am also of the view that the court has a discretion not to make an award of full recovery even where the party has met the conditions in Rule 18(14). The rule makes that clear since it provides that "unless the court orders otherwise" the party is entitled to full recovery. Again, a relevant consideration would be the financial condition of the parties, especially an unsuccessful custodial parent. See Church v. Church, 2003 CanLII 2084 (ON SC), [2003] O.J. No. 2811 (QL) (S.C.J.), at paras. 14-18. Finally, I am of the view that even when making an award of full recovery the trial judge must ensure that the costs sought by the successful party are reasonable.