Costs in Ontario Family Court Cases

What Are "Costs" in Family Court?

In family court, "costs" is a specific legal term. It refers to a court order requiring one party to contribute toward the other party's legal expenses for a case, a motion, or another step in a proceeding. Costs are not a penalty in the everyday sense — they are a tool the Family Law Rules give judges to allocate some of the financial burden of litigation, encourage reasonable behaviour, and encourage parties to settle rather than fight out every issue in court.

A costs order is separate from, and comes after, the decision on the actual issues in dispute — parenting, support, or property, for example. Once a judge decides those issues, either at a motion or at the end of a case, the judge may then be asked to decide whether a costs order should also be made, and if so, in what amount.

If you are new to how a family court case unfolds generally, start with our getting-started guide to family court, which explains the wider process that costs decisions fit into.

Costs vs. Your Own Legal Fees: An Important Distinction

One of the most common sources of confusion in family law is the difference between "costs" and your own legal fees. They are not the same thing, and mixing them up can lead to unrealistic expectations about a case.

Your own legal fees are what you owe your own lawyer or paralegal for the work they do on your case. This is a private arrangement between you and your legal representative, generally set out in a retainer agreement, and you are generally responsible for paying it regardless of how your case turns out or whether a costs order is ever made.

Costs, by contrast, are a separate court order that may require the other party to contribute toward what you spent on legal fees. Being awarded costs does not erase your obligation to your own lawyer — it simply means another party has been ordered to reimburse some portion of that expense. A costs award, where one is made, does not necessarily cover everything you were billed; it is generally intended as only a contribution, and the amount is left to the judge's discretion based on the circumstances of the case.

In short: every party in a family court case is generally responsible for their own legal fees as they are incurred. A costs order, if and when one is made, is an additional, separate step layered on top of that — not a guarantee, and not a substitute for budgeting for your own representation.

Are Costs Awarded Automatically?

No. Costs in Ontario family court are discretionary. There is no rule that automatically entitles the "winning" party to have their legal fees paid by the other side, and no formula that mechanically produces a dollar figure. Instead, the Family Law Rules give the judge broad discretion to decide, in each case, whether a costs order is appropriate at all, and if so, how much it should be.

This discretion is guided by rules and case law rather than left entirely open-ended. Ontario's Family Law Rules include a specific rule dealing with costs, and courts have described the general goals of a costs decision as including partially compensating a successful party for some of the expense of the litigation, encouraging settlement, and discouraging unreasonable conduct. How those goals apply, however, still depends on the judge's assessment of the specific case in front of them.

Because this area is genuinely discretionary and fact-dependent, treat any general description of "typical" costs outcomes, including this page, with caution — the outcome in your case will depend on your own circumstances, not a general average.

Factors a Judge Generally Considers

While every case is different, judges deciding costs in Ontario family court generally weigh a combination of factors, which can include:

• Success on the issues: which party was substantially successful on the motion, step, or case as a whole — though success on some issues and not others can lead to a more mixed result.
• Reasonableness of each party's conduct: whether a party acted reasonably in how they ran the case, including how they approached negotiation, disclosure, and procedural steps.
• Offers to settle: whether a party made a reasonable offer to settle that was not accepted, or unreasonably rejected an offer that was made to them (see below).
• Unreasonable or bad-faith behaviour: conduct such as unnecessary delay, failing to provide required financial disclosure, or taking positions without a reasonable basis.
• The importance and complexity of the issues: more complex or higher-stakes issues can affect what a judge considers a reasonable amount of legal work, and therefore a reasonable costs award.

No single factor is automatically decisive, and a judge can weigh them differently depending on the case. Where results are mixed, a judge also has discretion to apportion costs between the parties, or to decide that no costs order should be made at all.

How Settlement Offers Can Affect Costs

One of the more significant factors in a costs decision is whether either party made a formal offer to settle. Ontario's Family Law Rules specifically address offers to settle and allow a judge to take them into account when deciding costs, precisely because doing so encourages parties to make and accept reasonable proposals rather than proceeding all the way through a motion or trial.

The general concept works like this: if one party makes a reasonable offer to settle and the other party does not accept it, and the case then proceeds to a decision that turns out to be the same as, or less favourable than, the offer that was rejected, the party who rejected the offer can face cost consequences as a result. The idea is to reward parties who make and accept reasonable proposals, and to create a real incentive against prolonging a dispute that could have been resolved earlier on similar terms.

Offers to settle generally must meet certain formal requirements to be considered for this purpose, and are usually not shown to the judge until after the substantive issues have been decided, so the offer does not influence the decision on the merits itself. If you are considering making or responding to an offer, this is an area where getting professional advice on the specific wording and timing can matter.

Unreasonable Conduct and Cost Consequences

Beyond settlement offers, a judge can also take a party's general conduct during the case into account when deciding costs. Behaviour that can lead to a less favourable costs outcome for a party may include unreasonably refusing to negotiate, failing to provide financial disclosure that was properly requested or ordered, bringing unnecessary steps or motions, or not complying with earlier court orders without a good reason.

This means costs are not only about who "won" — a party who succeeds on the substantive issues can still face a reduced costs award, or even be ordered to pay some costs to the other side, if their conduct during the case was found to be unreasonable. Conversely, reasonable, cooperative conduct throughout a case is generally viewed favourably when costs are eventually decided.

Costs at Different Stages of a Case

Costs are not decided only once, at the very end of a case. They can potentially come up at more than one stage, though the general approach is not identical at every stage.

Motions

A motion asks a judge to decide a specific issue before the whole case is resolved. Costs can potentially be awarded at the end of a motion, based on which party succeeded on the motion and the same general factors described above.

Conferences

Conferences, including case conferences and settlement conferences, are generally treated differently from motions and trials for costs purposes. These conferences are primarily intended to help resolve issues and plan next steps rather than to produce a contested win-or-lose decision, and practice around costs at conferences can differ from the approach used for motions or trial. Confirm the current practice for your specific stage and court location.

Trial

At the end of a trial, costs are commonly addressed as a distinct step after the judge has decided the substantive issues. Parties are generally given an opportunity to make submissions on costs, often supported by a written summary of the legal fees and disbursements they are seeking to recover, before the judge decides whether to make a costs order and, if so, in what amount.

Can You Estimate Costs in Advance?

Not reliably. Because costs decisions are discretionary and depend on the specific facts, conduct, and offers involved in a particular case, it is generally not possible to predict a specific dollar figure, percentage, or formula in advance — and any source that offers one without qualification should be treated with caution.

What can be said generally is that a costs award, if one is made, is usually intended as a contribution toward legal fees rather than a full reimbursement, and that the amount a party is ultimately ordered to pay or receive depends on how a judge weighs the factors described above in light of the specific case. If understanding your potential exposure to costs matters to a decision you are making — such as whether to accept a settlement offer — that is a good topic to raise directly with a family law professional who can look at your specific facts.

Frequently Asked Questions