NN. Public Officials

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 571-572

Evidence; Procedure; Costs 571

lawyer is acting without a retainer. An adult child is not expected to deplete capital to pay

legal fees. An order for interim disbursements should only be granted in exceptional cases

where there appears to be a meritorious claim of substantia l importance to the parties that

would otherw ise not be pursued.246

A failure to make full and timely f‌inancia l disclosure is an important consideration in

determining the cost s of an interim application for child support.247

NN. PUBLIC OFFICIALS

A defendant who has failed to support family dependants may be ordered to pay costs to

of‌fset the expenditure of time by public of‌f‌icia ls who are employed to conduct proceedings

for the enforcement of suppor t orders.248

A court may f‌ind it inappropriate to order costs against the Director of Maintenance

Enforcement in the absence of special and unusual circumstances.249 A court may decline

to order costs against the Director of Ma intenance Enforcement until the director has been

given an opportunit y to be heard.250

Section 131(1) of the Courts of Justice Act251 provides no basis for an award of costs against

a non-party. However, the court has inherent jurisd iction to make such an award where it is

shown: (1) that the non-party had status to bring the action; (2) that the plaintif‌f was not the

true plaintif‌f; a nd (3) that the plaintif‌f was a “man of straw” put forwa rd to protect the non-

party from liability for costs.Costs should not be made against a non-party except in un-

usual and rare circu mstances.It has been held that costs may be awarded against a delivery

agent where the agent: (1) has instigated and supported the applica nt in making the applica-

tion; (2) has wrongly set the court in motion; (3) has known, or ought to have known, that

the application was fruitless; (4) has been unsuccessf ul in the application; (5) was ef‌fectively

identif‌ied with the application; (6) has ef‌fectively controlled the situation and the court

process.e fact that the delivery agent merely assists the applicant with her unsuccessful

application, in accordance with the governing legislation, wil l not, by itself, render the agent

liable to the successful party for costs but where the delivery agent assumed a controlling

role in the unsuccessful application, such conduct may attract an awa rd of costs.252

e presumption that a successful part y is entitled to costs does not apply to a govern-

ment agency by vir tue of Ontario Family Law Act Rule 24(2), but the court has a discretion

to order costs to or against a government agency under Ontario Family Law Act Rule 24(3),

where that agency was the largest stakeholder and took the lead in the conduct and presen-

tation of the case.253 In Ontario (Director, Family Responsibility Of‌f‌ice) v. Ramsay,254 it was

determined that the case law perm its a court to order costs against the Family Responsibil-

ity Of‌f‌ice in the face of special a nd unusual circumstances and the absence of good faith is

not a necessary requirement.

246 Lynch v. Lynch, [1999] O.J. No. 4559 (S.C.J.).

247 MacInt osh v. MacIntosh, [2003] A.J. No. 728 (Q.B.).

248 Davis v. Colter (1973), 12 R.F.L. 84 (Sask. Q.B.); see als o Wright v. Wrig ht (1994), 7 R.F.L. (4th) 43 (B.C.S.C.).

249 Bu dge v. Budge, 2010 ABQB 608.

250 Goudriaan v. Plourde, [2002] A.J. No. 272 (Q.B.).

251 R.S.O. 1990, c. C.43.

252 C.L.E. v. K.D., 2010 ONSC 7072.

253 Gauthier v. Martel, [2003] O.J. No. 5296 (S.C.J.).

254 2005 ONCJ 324. See a lso Emhecht v. Ontario (Family Respon sibility Of‌f‌ice), 2011 ONSC 2644.