How to handle costs in family law

Tammy MacKenzie for The Lawyers Weekly

Family Lawyers Understand Family Law Costs

Child Custody Settlements are Usually Costly

Family law costs typically come from child custody settlements. Family Lawyers understand that you care about your child dearly. However, they also understand how expensive this process is, especially court dates. This is why a reasonable Family Lawyer will try to negotiate a settlement before entering the courtroom. The best interest of your child is also considered during the many other family disputes. As a result, Family Lawyers try to help you avoid family law costs by strategically negotiating child custody.

Through their strategic negotiating skills, Family Lawyers will make best efforts to avoid going to court needlessly. Family Lawyers will remind you when issues get too sensitive and will keep your needs in mind when skillfully writing documents to minimize causing anyone distress. In addition to this, your Family Lawyer may also advise you on how to best avoid high family law costs. Use our FREE online legal directory to find a Family Lawyer who understands the principles of family law costs.

Family Lawyers Remind You of the Principles of Family Law Costs

As Tammy MacKenzie explains from The Lawyers Weekly, many people often get wrapped up in divorce settlements and claims forgetting about family law costs. Family Lawyers usually remind you of the legal fees involved with family law costs to help you avoid further emotional upset and economic instability. This is especially true if child custody is a pending issue. An experienced Family Lawyer can give you a general idea of how much a court date may cost and other fees to expect. Even though family law costs, you should still find a local Family Lawyer that will help you understand the principles involving the cost of family law and child custody.

November 13, 2009

A successful party is entitled to costs, although the court has discretion on the issue. But practitioners and the courts face unique challenges for costs in the family law context.

Some decisions suggest that the general principle for costs is not appropriate in family law matters. In recent years, the judiciary has awarded costs consistently in family law cases. There must be good reason to depart from the normal rule of costs - a successful party in a family law matter should be no less entitled to costs than a party in other types of proceedings.

But an assessment of costs in family law presents unique considerations in both entitlement and quantum. Most family cases involve a multitude of issues, very often resulting in divided success. The issues are frequently non-pecuniary in nature.

For example, the best interest of the child is the prevailing consideration in custody disputes. This is a difficult concept to define with certainty and will result in different conclusions on a case-by-case basis. Should an unsuccessful parent be penalized for seeking a resolution to such an issue? Reasonableness will be the key.

Justice Douglas Campbell noted in Kennedy-Dowell v. Dowell, [2002] N.S.J. No. 499 (NSSF) that "the reasonableness of both the trial position and the bargaining position (including the timing of concessions made) is a very important factor in deciding whether an order for costs should be made. This is especially true in family law matters because the parties are often of limited resources and can often face legal fees after a trial which make the process uneconomical and devastating to the family including children. Family law disputes are capable of out of court resolution in many cases and the policy of the court regarding costs should promote compromise and reasonableness in the negotiating process."

Formal offers to settle may be instructive in assessing reasonableness, but will be of limited value if they are comprehensive and thus not open to acceptance on an issue-by-issue basis.

The Nova Scotia Civil Procedure Rules give the court the option to consider any matter relevant to the question of costs, including factors such as the conduct of the parties, the manner of conducting the proceeding and the failure to make admissions. The rules also require reference to the "amount involved" and the tariffs. How does one attribute an "amount involved" to a custody determination or to a periodic support award that may be the subject of future variation?

Nova Scotia courts have relied on a "rule of thumb," coined by Justice Walter Goodfellow, who recognized the need for some degree of uniformity and consistency in costs awards where there are significant aspects of the case with no clear "amount involved." In Urquhart v. Urquhart, [1998] N.S.J. No. 310 (NSSC), Justice Goodfellow states, "In the determination of costs, I have guidance from the developing rule of thumb of equating each day of trial to an amount of $15,000.00 where there is no clear 'amount involved.' This has the benefit of reflecting the time aspect of the trial, which in itself normally reflects the degree of preparation and time."

The rule of thumb approach is often viewed as a practical solution to the problem of determining the "amount involved" and in recent cases has increased to $20,000 for each day of trial.

There is also the need to consider the parties' financial circumstances, obligations to children and the effect that a costs award would have on them. Justice James Williams stated in Grant v. Grant, [2002] N.S.J. No. 14 (NSSF), "The parties' relative financial, income, and asset situations, and the arrangements for and their obligations to the children are part of my consideration of the issue of costs. Ms. Grant's circumstances temper the amount of costs I would otherwise order."

Impecuniosity cannot, however, be a complete bar to costs. In Grant, Justice Williams cited with approval Britt v. Britt, [2000] O.J. 5981 (S.C.J.), wherein Justice MacKinnon observed "the financial ability to pay costs has long been a factor to take into account in fixing the amount of costs in a family case... It cannot be a complete 'defence' to an award of costs, because if it were, this would mean that a party could litigate with financial immunity."

While this is a review of the Nova Scotia experience, the considerations are similar across the country. Practitioners must maintain a position of reasonableness throughout the process while representing clients who are facing raw and intimate emotions.

A practice of making reasonable written proposals throughout the proceedings, a willingness to negotiate and an awareness of family law costs principles will assist practitioners in making or defending a costs claim at the end of a proceeding.

Tammy MacKenzie is a partner at Burchell MacDougall in the Truro, N.S. office, and she practises family law throughout the province. She thanks Dianne Paquet for her assistance with this article.

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