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Written by: WEL Partners
Posted on: July 3, 2014
Categories: Commentary
I recently blogged about two bad neighbours who the court called “children in need of a stern kindergarten teacher rather than a judge”. In that case, both parties were denied their costs. This blog is about another variation on the same theme: It shows that mundane misconduct will be punished just as harshly as the ridiculous and outrageous.
In brief reasons on costs in a family law case, the court ordered the husband to pay $40,000 in costs to the wife on a substantial indemnity basis. The husband denied that the wife was entitled to an equalization payment from him and offered to pay time- limited spousal support. The judge agreed that no equalization payment was owing, but ordered the husband to pay double the amount of spousal support that he had offered, for an indefinite period of time.
The husband argued that he had been partially successful and that the court should make no order that either party pay the other’s costs. The judge saw things differently. Looking at the claims made and the parties positions as a whole, the judge noted that the wife had agreed that no equalization payment was owing, but that, as a result of this, she would need more support. Her position was reasonable, while his was not. The court went so far as to say that the husband acted unreasonably. The court found that the case could have been resolved a long time ago if the husband had only, “approached the question with a moderate degree of realism and decency”.
Unlike the quarrelling neighbours, this case is neither unique nor exceptional. It is a typical example of the court using its discretion to award costs to punish the party for taking an unreasonable position in the litigation – a position that the husband likely did not perceive as being so unreasonable at the time he made it.
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