Diane J. LaRocque

Following a lengthy family law trial involving disputes over custody and equalization, the court addressed outstanding costs issues.

The court found that neither party was entirely successful at trial and that both parties engaged in unreasonable conduct that prolonged the litigation and increased costs.

As a result, neither party was awarded costs of the trial itself.

However, the respondent was ordered to pay $8,000 relating to a specific phase of the litigation arising from earlier proceedings, reflecting responsibility for certain decisions that generated additional costs.

The amount was ordered payable by set-off against the respondent’s spousal support entitlement.

Following extensive family litigation concerning custody and related relief, the applicant brought a motion seeking costs personally against opposing counsel and their law firm under Family Law Rule 24(9), alleging their litigation conduct unnecessarily caused costs to be incurred.

The court reviewed the lawyers’ conduct, including commencing proceedings in the wrong jurisdiction, failing to properly serve court orders, bringing urgent motions on short notice, filing repetitive affidavits, and making inaccurate representations to the court.

Applying the principles governing personal cost awards against lawyers, including the caution articulated in Young v. Young, the court concluded that the conduct of counsel and their firm unnecessarily caused costs to be incurred and warranted censure.

The court held that Family Law Rule 24(9) adequately addressed the circumstances and that the conduct constituted “fault” resulting in wasted costs.

Personal costs orders were imposed against the firm and two lawyers for amounts reflecting only the unnecessary costs directly attributable to their conduct.

The applicant mother and respondent father separated after a long-term relationship.

The father had primary care of their two children for over five years.

The mother sought sole custody, relocation of the children, and spousal support, while the father sought sole custody, child support arrears, and equalization.

The court upheld the spousal support waiver in the marriage contract, finding no unconscionable circumstances.

The court awarded sole custody to the father, finding it in the children's best interests to maintain the status quo, but granted the mother interim specified access to re-establish her relationship with the children.

The mother was also ordered to pay an equalization payment, retroactive child support, and ongoing child support based on her current income.

Following a family law trial in which the applicant was completely successful, the court determined the appropriate costs award.

The applicant sought substantial indemnity costs of $72,000, arguing the respondent’s unreasonable litigation position forced the matter to trial.

The court found the respondent’s insistence that the applicant support herself unreasonable given the caregiving demands of raising two severely autistic children, but also concluded the applicant pursued the case with excessive litigation effort and sought inflated recovery.

Considering the parties’ financial circumstances and the principles of fairness and proportionality, the court fixed costs at a reduced all-inclusive amount.

The court declined to order payment of costs from the respondent’s locked-in retirement account under the Family Law Act.