Large costs award in family case gains media attention

Following a 36 day trial, an Ontario judge awarded close to $200,000.00 in costs against a responding party in a protracted custody and access dispute where the father was awarded sole custody of his daughter. In Jackson v. Mayerle, the father had spent about $300,000.00 in legal costs, and the mother had spent $200,000.00. Because he won the case (and is, therefore, presumptively entitled to his costs- although not necessarily 100% of his costs), and the mother’s conduct was unreasonable, she was ordered to pay 2/3 of his legal bills. The case has been reported on by both the National Post and the Toronto Sun.

In making the decision not to award full recovery of legal costs to the father, the judge considered that:

(1) Much of the evidence presented in the 36-day trial (by way of 20 separate witnesses) could have been admitted, either through an agreed statement of facts or, through serving requests to admit. These are both options allows by the Family Law Rules to narrow the scope and length of a trial.

(2) No pre-trial questioning took place between the parties. Questioning prior to trial would undoubtedly have allowed the questioning of witnesses that took place during the trial to have been more focussed. For example, the wife’s lawyer took 2 days of court time to cross-examine the social worker who conducted the custody and access assessment and, during that time, was not able to weaken the social worker’s credibility.

(3) The lawyer’s bill of costs submitted by the father was not detailed enough to explain why specific work being done was necessary to advance his case.

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