Court of Appeal Brings Proportionality back to Family Law Costs Decisions
In the case of Beaver v Hill, the Court of Appeal has finally put to rest a long-running erroneous belief regarding costs in family law cases. The case of Biant v Sagoo, a 17 year old case which was the root of the belief that costs in family law cases should generally approach full recovery, has been cited 171 times according to CanLii. Presumably, 169 of those times cited were to justify an award close to full recovery costs. (The other 2 being the case of Berta v Berta, which required a corrigendum to ensure that statement was not made, and Beaver v Hill itself). In Beaver v Hill, the court of appeal finally clarifies that, absent circumstances like bad faith or the beating of an offer to settle, the presumptive rule in family law cases is NOT that costs generally approach full recovery.
While it is true that the traditional scales of costs do not apply in family law cases, the court has now strongly confirmed that “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.” (per Nordheimer J.A., writing for the full panel).
I have always been troubled by the principle that costs should approach full recovery in family law cases as a matter of course. There are a few reasons for this: 1) Awarding full recovery costs as a general rule removes any incentive to act reasonably, since full recovery costs may be the result in any event. 2) Family law cases relate to litigation over some of the most important issues in people’s lives, especially when they deal with children’s issues. A person who fights for his or her child’s best interests, but simply does not succeed, should not necessarily be “punished” by having to pay close to 100% of the other side’s costs, assuming he or she acted reasonably. 3) The default “close to full recovery” principle is not found in any other area of litigation. While the court of appeal notes that the case of Frick v Frick states the principle that the Family Law Rules “embody a philosophy peculiar to a lawsuit that involves a family”, the court rightly concludes that this principle means costs should be more proportionate and reasonable, and NOT simply approach full recovery.
It is unfortunate that years of cases had been decided wrongly before the court of appeal has now clarified this principle. However, it is better late than never that the court has provided trial judges with cornerstone principles for deciding costs in a more thoughtful way. This is certainly a positive step in the development of costs rules in Family Law cases.
(This write-up originally appeared on CanLii as a submission for CanLii Connects)