Hello, my name is Daphna Schwartz and I am a Family Lawyer at Feldstein Family Law Group. I would like to speak to you about the legal concept of costs in the court process.

What are costs? In family law cases, when a judge is asked by you or your spouse to make a decision on an issue that you and your spouse cannot agree to, such as a temporary decision at a motion, or a final decision at a trial, there is a presumption that the winner of that decision should get their costs paid for by the loser, which means the loser should pay a portion of or all of the winner’s legal fees.

Why do we have costs? Not all family matters need to have motions or a trial, and your matter can often be settled without having to engage a judge to make a decision. However, if you absolutely need a judge to make a decision in your family matter, then costs help to create a bit of a downside, in other words a disincentive, in pursuing that avenue. The goal, of course, is a settlement between the parties, without the need of a judge. For instance, if you are going to take an unreasonable position, and that unreasonable position results in you losing a motion or a trial, then you should be prepared to pay for maintaining that unreasonable position. As such, costs are awarded to encourage you to be reasonable, to settle, and to prevent you from starting unnecessary court actions and motions.

How can you be perceived as being reasonable? Conduct yourself in the litigation with your spouse in an appropriate manner. That means don’t play games, don’t be difficult, and don’t expect your problems to go away by doing nothing. Be prepared for each court date and do the work that is asked of you in between each court date. You need to show that you are motivated to move your matter towards a resolution and that you have not acted in bad faith. As well, you should listen to what the judge tells you and the advice you receive from your lawyer, as it is meant to help you. It only takes one unreasonable person to drive up the legal bill, so don’t be that person.

What can you do to show you are trying to settle your matter? It is always recommended that before you engage the judge to make a decision you should make a reasonable offer to your spouse to settle the issue or issues in dispute, as in doing so you may avoid having to argue the motion or trial at all. As well, offers are good for helping to narrow the issues in dispute, which allows you and your lawyer to focus on the remaining issues. Even if not accepted, offers help you better understand your spouse’s position on the issues, which may help you in negotiation and settlement. If you do not make an offer, or if your offer is unreasonable, a significant costs award could be made against you.

Attending court is expensive and having to pay a portion of your spouse’s legal fees may double the cost. As such, if you do not act reasonably, do not make any offers to settle, or reject or ignore reasonable offers made by your spouse, you may end up paying costs.

If you need more information about your family matter and wish to schedule a consultation, please visit our website at www.separation.ca or contact our office at 905-581-7222. Thank you for watching.