Do I have to pay my spouse’s costs for our divorce?


We talk about court-ordered costs in our blog here: What are court ordered costs?

The usual rule in family cases is found in Supreme Court Family Rule 16-1 where it is presumed that the costs of a family law case must be awarded to the successful party unless the court otherwise orders. Some lawyers have taken the position that the usual rule does not apply where the only issues to be decided are those relating to children. Case law does not support that as a general rule. Instead, it was confirmed by the BC Court of Appeal in SJC v. S-JCA, 2010 BCCA 31 that the usual rule applies in all matrimonial proceedings subject to the trial judge’s discretion to refuse costs to a successful party in certain cases.

In SJC, the factors that the court could consider in deciding whether to refuse costs to a successful party were listed as being hardship, earning capacity, the purpose of the particular award, the conduct of the parties to the litigation and the importance of not upsetting the balance achieved by the court, although it was clarified that the list was not exhaustive. Where children are involved, the court will also consider the best interests of the child.

As Madam Justice Humphries states at paragraph 16 of Hansen v. Mantei-Hansen, 2013 BCSC 1854,

[16] The underlying reasoning in all the cases in which parents have been required to bear their own costs in a custody battle is based not on a party’s “genuine belief”, but on the court’s assessment, after observing the parents and their witnesses and hearing all of their evidence, that each parent was a worthy primary residence/custodial parent and the decision, often heart-breaking because of its difficulty and importance, could go either way. For the children’s sake, a decision has to be made, and the trial judge is given this important and difficult task of deciding what is in their best interests. Where such circumstances exist, trial judges have often declined to make orders for costs in custody cases, whether articulating it as a matter of principal (not the recommended approach, given the Court of Appeal’s views on the wide applicability of Gold), or a matter of discretion (the approach approved by the Court of Appeal in Gold and the cases that have followed it).

The short answer is that if you are unsuccessful on your claims, the presumption by the court is that you are responsible for paying the tariff costs of your spouse unless the court finds that there is a reason they should not be entitled to their costs considering the factors listed above or any other factor. If you are unsuccessful, and your spouse beat their offer, you may be required to pay double your spouse’s tariff costs.

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