JJ. Costs on Solicitor and Client Basis; Special or Increased Costs

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 568-568

568 CHILD SU PPORT GUIDELINES IN CA NADA, 2012

accordance with the Federal Child Support Guidelines should bea r the costs of the proceed-

ings that are required to resolve the issue s they raise.222 Support payors and recipients must

be discouraged from raising frivolous defences to simple claims for an increase or adjust-

ment to the applicable provincial table amount of child support. Insubstantial arguments

in response to simple claims should be ref‌lecte d in an order for costs against that pa rty.223

While a successfu l party is ordinarily entitled to cost s in matrimonial proceedings, es-

pecially where child support is concerned, t he impact of an order for costs on the custodial

parent’s ability to support the children should be considered.224

Where a paying spouse’s annual income vastly exceeds $150,000 and there is a huge

disparity in the ability of the respective spouses to pay the costs of litigation, the paying

spouse should pay the costs of challenging the presumptive application of the provincial

table amount to the assessment of child support provided that the payee spouse has not

acted unreasonably and there are no of‌fers to settle that would attract the application of

Rule 18 of the Ontario Family Law Rules.225

JJ. COSTS ON SOLICITOR AND CLIENT BASIS; SPECIAL OR

INCREASED COSTS

In British Columbia, a parent who deliberately misleads the court with respect to his in-

come under the Federal Child Support Guidelines may be ordered to pay special costs.226

A parent who makes resolution of the determination of child support unduly dif‌f‌icult may

be penalized by an order for increased or special costs, but such an order may be deemed

inappropriate where the conduct does not warra nt rebuke.227

A parent’s failure to comply with the disclosure provisions of Rule 70.09 of the Nova

Scotia Civil Procedure Rules and with section 21 of the Federal Child Support Guidelines

may trigger an order for costs as an appropriate sanction and such an order may allow costs

amounting to a ful l indemnity.228

Costs may be assessed on a solicitor-and-client229 or full-recovery basis where the ob-

ligor adamantly refuses to concede any obligation to pay child support and the delay and

costs involved are totally attributable to this position.230 A successful applicant may be

awarded costs on a full-recovery basis where the respondent acts in bad faith under Rule

24(8) of the Ontario Family Law Rules by failing to provide full and timely f‌inancial dis-

closure, in forcing the applicant to value the respondent’s business, and in failing to pay

reasonable child support and section 7 expenses while waiting for an interim motion to be

determined.231

222 Carew v. Ricketts, [2003] N.J. No. 52 (S.C.).

223 Gray v. Gray, [1998] O.J. No. 2278 (Gen. Div.); Russell v. Russell, [1998] O.J. No. 3381 (Gen. Div.).

224 Glad v. Glad (1994), 5 R.F.L. (4th) 270 (Ont. Ct. Gen. Div.).

225 Taub er v. Ta ube r, [2000] O.J. No. 3355 (C.A.); see also Tau ber v . Taub er, [2000] O.J. No. 2133 (C.A.); R. v.

R., [2001] O.J. No. 833 (S.C.J.); compare Tor bey v. Tor bey, [2001] A.J. No. 1320 (Q.B.).

226 Rozen v. Rozen, [2002] B.C.J. No. 2192 (S.C.).

227 Baum v. Baum, [2000] B.C.J. No. 2565 (S.C.).

228 Guillena v. Guillena, [2003] N.S.J. No. 76 (S.C.).

229 As to an order that sol icitor-and-client costs be paid person ally by the respondent’s lawyer, see Dickson v.

Dickson, 2011 MBQB 296.

230 Baumann v. Clatworthy (1991), 35 R.F.L. (3d) 200 at 213 (Ont. Ct. Gen. Div.). Compare Buchanan v. Bu-

chanan, [2009] O.J. No. 674 (S.C.J.).

231 Paech v. Paech, [2004] O.J. No. 5067 (S.C.J.).