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By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*

This post is part of our “Back to Basics” blog series, which provides an overview of key family law topics.

Costs submissions are sometimes an afterthought for family lawyers, something to quickly cobble together after the hard work of a conference, settlement, motion, trial, or appeal. However, understanding the principles governing costs orders can help to move issues forward towards resolution. In this post, we review the legislative framework that applies in Ontario, guiding principles, and leading case law. We end with some reminders of what to include in your costs submissions.

Legal Framework for Costs in Ontario

Costs in Ontario are governed by Rule 24 of the Family Law Rules, O. Reg. 114/99.

Subrule 24(14) [previously R. 24(12)] prescribes the factors the court shall consider in assessing the quantum of costs:

• (a) the reasonableness and proportionality of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:
• (i) Each party’s behaviour.
• (ii) The time spent by each party.
• (iii) Any written offers to settle, including offers that do not meet the conditions set out in subrule (12) or the requirements of rule 18.
• (iv) Any legal fees, including the number of licensed representatives and their rates.
• (v) Any expert witness fees, including the number of experts and their rates.
• (vi) Any other expenses properly paid or payable; and
• (b) any other relevant matter.

Pursuant to 2025 Amendments to the Family Law Rules, parties are now required to confer in advance and be prepared to argue costs at each stage (with some exceptions, including in cases where there is a risk of family violence by an unrepresented party): Rr. 24(17) and (18).

There are now also default timelines (15 days, and 30 days to respond) and maximum page limits (3 pages, and 5 for trials) for costs submissions in R. 24(19), which apply unless the court orders otherwise.

Subrule 17(18) creates a presumption against liability for costs of a conference. However, there are exceptions. See my earlier blog post, Costs Following a Conference are Mandatory in Certain Circumstances (and Can be Substantial): https://lamfamilylaw.ca/2024/01/30/costs-following-a-conference-are-mandatory-in-certain-circumstances-and-can-be-substantial.

Rule 18 of the Family Law Rules deals with offers to settle, including how offers are to be made and accepted. The making, withdrawal, acceptance and rejection of offers are all subject to costs consequences: R. 18(12.1). When a party fails to make an offer, i.e., fails to provide a reasonable alternative to a judicial determination, and is unsuccessful, they have put the other party to “significant and unnecessary costs”: Kasmieh v. Hannora, 2023 ONSC 1643 (CanLII), at para 14. Similar principles apply for a failure to accept an offer.

Other relevant provisions include Rr. 2(2)-(4) of the Family Law Rules [primary objective of the rules is to enable the court to deal with cases justly] & Courts of Justice Act, RSO 1990, c C.43, s. 131 [subject to provisions of an Act or rules of court, costs of and incidental to a proceeding or step in a proceeding are in the court’s discretion, and court may determine by whom and to what extent costs shall be paid].

Guiding Principles

The starting point for an award of costs is deciding who was the successful party. There is a presumption that each party is entitled to costs for the issues on which they succeeded: R. 24(3).

If success is divided, the court may apportion costs as appropriate: R. 24(4). In that case, courts will undertake a “comparative analysis” to consider whether some of the issues were more important, time-consuming, or costly: see J.M.M. v. C.R.M., 2025 ONSC 3631 (CanLII), at paras 11-14, citing various cases.

In cases involving parenting issues, success must also be assessed from the child’s perspective, since the child’s success is the object of the proceeding: see J.M.M. v. C.R.M., ibid, at para 15, citing S. v. A., 2022 ONSC 55 (CanLII), at para 46.

The Court of Appeal for Ontario has held that “proportionality and reasonableness are the touchstone considerations in fixing the amount of costs”. Further, the Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded: Sears v. Coristine, 2021 ONSC 2010 (CanLII), at paras 12 & 14, citing Beaver v. Hill, 2018 ONCA 840 (CanLII).

A successful party who has acted “unreasonably” may be deprived of all or part of their own costs or ordered to pay all or part of the unsuccessful party’s costs: Rr. 24(7)(8). The list of factors set out in R. 24(8) is not exhaustive in assessing whether a party has behaved unreasonably: J.M.M. v. C.R.M., 2025 ONSC 3631 (CanLII), at para 20.

There is a presumption that a party will be held liable for costs if they do not appear at a step, are not properly prepared at that step, or otherwise contribute to the step being “unproductive”: R. 24(9); J.M.M. v. C.R.M., ibid, at para 22.

Courts may now also consider if a party’s representative has run up costs “without reasonable cause or has wasted costs”: R. 24(11).

Although full recovery costs are not the default or presumption, the Family Law Rules expressly contemplate full recovery costs where a party has acted in bad faith [R. 24(10), previously R. 24(8)], or has beaten an offer to settle under R. 24(12) [previously R. 18(14)]: Mattina v. Mattina, 2018 ONCA 867 (CanLII), at para 15.

Key Cases

• J.M.M. v. C.R.M., 2025 ONSC 3631 (CanLII), at paras 5-63 [recent decision from Chappel J. which thoroughly reviews costs principles].
• Mattina v. Mattina, 2018 ONCA 867 (CanLII), at paras 9-11, citing various cases [courts have “broad discretion” to award costs; modern costs rules are designed to foster four fundamental purposes: (a) to partially indemnify successful litigants; (b) to encourage settlement; (c) to discourage and sanction inappropriate behaviour; and (d) to ensure that cases are dealt with justly].
• Beaver v. Hill, 2018 ONCA 840 (CanLII), at paras 11-19 [Family Law Rules do not provide for a general approach of “close to full recovery costs”; “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”].
• Serra v. Serra, 2009 ONCA 395 (CanLII), at para 8 [costs rules are designed to foster three principles: (a) to partially indemnify successful litigants; (b) to encourage settlement; and (c) to discourage and sanction inappropriate behavior].
• Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), at para 37 [costs should reflect “fair and reasonable” amount to pay, not simply actual costs of successful litigant].
• C.A.M. v. D.M., 2003 CanLII 18880 (ON CA), at paras 42-43 [court may consider financial position of both parties, especially unsuccessful custodial parent; cannot ignore impact of a costs award against a custodial parent that would seriously affect interests of the child; court also to consider if costs sought are reasonable and any offers to settle].

What to Include in Your Costs Submissions

• Details: While there is no form for a Bill of Costs or Costs Outline under the Family Law Rules (unlike in the Rules of Civil Procedure), a Bill of Costs should ideally include enough information to determine when fees were incurred, the steps or activities involved that gave rise to the docketed time, and to what issues the dockets relate. It will be difficult, if not impossible, for the court to determine whether the hours are “reasonably necessary” without a breakdown of the time spent on each task.

  Further, any claim for costs respecting fees or expenses must be supported by documentation: Rr 24(15)-(16).

• Fee summary: There is some confusion about how to determine substantial and partial indemnity. Subrule 1.03(1) of the Rules of Civil Procedure, RRO 1990, Reg 194, defines “substantial indemnity costs” as being 1.5 times what would otherwise be awarded in accordance with Part 1 of Tariff A, but doesn’t define partial or full indemnity costs. The case law recognizes that substantial is less than full, and generally sets it at between 80-90% of full.

  For partial indemnity, see Climans v. Latner, 2020 ONCA 554 (CanLII), at para 108: “the usual approach” is to treat “partial indemnity costs as 60% of full indemnity costs”.
  The bottom line is that you should be transparent in what percentage you are using so that the court can then adjust as it sees fit.

• Offers to settle are admissible in determining costs, so long as the underlying issues have been decided, whether by settlement or by order: Howes v. Howes, 2018 ONSC 6297 (CanLII), at paras 10-32.

  However, do not make reference to what was said at a case conference, settlement conference, or a closed mediation in your costs submissions, and do not include any materials or offers to settle exchanged for a conference or closed mediation: see R. 17(23); G.P. v. R.P., 2023 ONCJ 437 (CanLII), at para 34; Sanvictores v. Sanvictores, 2022 ONSC 1299 (CanLII), at para 5; & D.S.M. v. R.M.M., 2018 ONSC 1197 (CanLII), at para 39.

• Include your costs of the costs hearing itself: Berman v. Berman, 2017 ONSC 4966 (CanLII), at paras 7-18.
• Enforcing costs as part of a support order: Where the issue of spousal or child support is before the court, the court has discretion to order that costs be treated as support for the purposes of the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c. 31 (“FRSAEA”) and to be enforced as such under s. 5(1) of that Act.

  Make sure to spell out any such term very clearly in your draft order. Section 4 of the Recommended Standard Terms for Support Orders, O Reg 454/07, made pursuant to the FRSAEA, suggests the following standard term:
  “Costs are fixed in the amount of $[insert amount], of which $[insert amount] is related to support and is enforceable as support by the Director, Family Responsibility Office.”

*with thanks to Rebecca Winninger for her suggestions and edits.

This blog is informational only and should not be relied on as legal advice.