Who Pays the Costs of Going to Family Court?

One of the things people worry most about when separating is the cost of getting divorced. The cost of going to Family Court can be very high. Separating spouses want to know which spouse will pay the legal and other fees. 

When people mention “court costs”, they are speaking about two types of things:

1. The costs for filing documents with the Court or other fees that someone has to pay directly to the court to have the court proceed with a specific step.
2. The fees charged by lawyers, accountants, process servers, and other professionals in relation to the litigation.

Not surprisingly, the fees charged by professionals are usually much more than the fees charged by the courts. Ontarians almost completely pay for the Family Courts system through their taxes. The changes to the Divorce Act effective July 1, 2020, recognize that avoiding court, and the associated fees, can also significantly reduce the professional’s fees. So, parties should consider using mediation, arbitration, Collaborative Practice or the Ontario Government’s Child Support Online Recalculation Service, where appropriate.

When parties stay in court, it is important for them to understand who will pay the associated costs and why.

COURT FEES

Most court fees are associated with either getting a divorce or asking the court to assist with property division. Either the Superior Court of Justice or the Superior Court of Justice – Family Court deals with those matters depending on in which municipality the court proceedings take place. There are fees for:

• filing an application asking for a divorce or asking for an order respecting property, 
• filing an Answer to those demands (listen to this podcast for an explanation of the steps in a Family Court case), 
• scheduling a trial or getting a Divorce Order), 
• getting a summons for a witness, 
• getting a Divorce Certificate (which is necessary to remarry), and 
• making photocopies of court documents. 

All the Family Court fees are listed on this page. They range from $31.00 to several hundred dollars. (People also have to pay for transcripts of court proceedings, but those fees, which can be many thousands of dollars, are owed to the court reporters, not the court).

There are no court fees for court proceedings in the Ontario Court of Justice or for cases in relation to only child support, spousal support or parenting.

With respect to the payment of the actual Court Fees, the party who takes the steps pays the fees. This means, for example, that a spouse who files his or her answer to his or her spouse’s claims pays the cost of filing that document with the court.

While Court Fees can amount to several thousand dollars, they are not usually the fees that people talk about when they talk about the cost of Family Court. Most of the costs of going to Family Court are associated with professional fees, especially the costs of lawyers and, where necessary, accountants.

PROFESSIONAL FEES

Initially, parties pay their own professional fees associated with Family Court litigation. Where a party qualifies for Legal Aid, he or she may not have to cover the costs of legal fees associated with parenting or support matters. Legal Aid Ontario does not assist with legal fees related to obtaining a Divorce Order or property matters (essentially the same matters for which the Superior Court charges fees). Legal Aid Ontario is also not supposed to pay the fees associated with a person taking an unreasonable position. Also, to get Legal Aid, a person must have very little income – such little income that the person is living in poverty.

Since legal fees can be a significant portion of the costs of getting divorced or dealing with another matter in Family Court, it is helpful to do things to keep those fees low. Watch the video above for tips on how to keep Family Lawyer’s Fees down.

Note that hiring a lawyer with a lower hourly rate will not necessarily save you money – you need a lawyer who is competent to handle the issues in your case and more complex or difficult cases require more senior lawyers with higher hourly rates to get the result you want. Many people find that when they pay less for a lawyer, they end up paying far more than they saved due to a bad settlement or court order. It can be useful to at least consult with a senior family lawyer to know where you should end up and how to get there.

It can be also helpful to consider hiring a good lawyer either for unbundled services or as a Family Law Coach, which can give a party more control over fees by taking more responsibility for handling the litigation.

Check out this page with more information on Family Lawyer’s Fees.

However, the question of “who pays for Family Court” does not end there. Ontario has a “loser pays” Court System. That means that the unsuccessful party in Court pays some or all of the lawyer, accountant and other professional fees of the winning party. So, while each party may have to pay those fees as they go along, at the end of a trial, motion, or appeal, the judge may order that the “losing party” reimburse the winning party for some of those fees.

On a quick side note, it is possible to have one separated spouse pay the other separated spouse’s legal fees in advance. Judges do that when one spouse has all the money and is holding on to it and the other spouse needs access to some funds to protect his or her rights in court.

In Family Court, judges do not just assess who “won”, as that can sometimes be difficult to determine. They also look at which party behaved more reasonably, whether a party has acted in bad faith, and, most importantly, formal offers to settle. 

Rule 18(14) of the Family Law Rules states that when a party gets a result that is as good or better for them as a previous formal offer that the party has properly made, the other party should pay all or substantially all of the legal fees. Put more simply, a party who “beats” an offer to settle in Court can expect the other party to pay the legal fees for both sides, including reimbursing any fees already incurred.

The idea behind this is simple: if one spouse had accepted the other spouse’s good offer, he or she would not only have come out better but saved both spouses the time, aggravation and costs of continuing in Family Court.

It is very important for anyone involved in Family Court to make an offer that he or she can beat as early on as possible. That way, the answer to the question “Who pays the costs of Family Court” will be “the other side”. A former spouse may end up paying all of the professional fees associated with the Family Court process – even when those legal fees are hundreds of thousands of dollars.

It remains important to act reasonably. A party who acts in bad faith always pays the other side’s legal and other fees, regardless of the outcome. It is very important to get good legal advice to take reasonable positions before the Court and make good offers to settle, to get reimbursement for legal fees. Having to pay the legal fees of both sides can bankrupt, or at least cause serious financial harm, to the person who has to pay them.

There is one caveat. Legal fees related to support can be enforced by the Family Responsibility Office and survive bankruptcy. Other fees can be very difficult, or impossible, to collect if the other side has no money, even if the other side lost. For those cases, in considering steps in Family Court, it is especially important to consider their cost when the other side will never be able to reimburse those costs. It may be best to try to settle as the professional fees will be more than any benefit of fighting it out in Court.

Who Pays When The Spouses Stay Out of Court

As noted above, separated spouses and parents can save a LOT of money by staying out of court. So, who pays then?

Most couples negotiate a separation agreement with the help of lawyers and then have the lawyers write up the agreement. When that happens, each side usually pays his or her own legal fees unless they negotiate something different. In these cases where parties reach a fair agreement, each spouse usually ends up with enough money to pay the legal fees without getting into financial trouble.

When the parties go to mediation, most often each side pays for his or her own lawyer and half the cost of the mediator. This gives both sides some commitment to resolve their matters at mediation – at a much lower cost than in court. Although, where the parties both view mediation as worthwhile if one spouse doesn’t have the funds available, they can share the cost of the mediator differently.

Most arbitrators expect each side to pay an equal amount towards the arbitrator’s fees unless they have agreed to special arrangements. Most arbitrators adopt the cost rules that are in the Family Law Rules or ones that are very similar. So, at arbitration, offers to settle are very important and the “loser pays.” In arbitration, it is common for the arbitrator to order that the unsuccessful party pay the arbitration fees, including reimbursing the other party for fees already paid. 

It remains important to act reasonably, listen to a lawyer, and make good offers to keep the cost of any separation, divorce or other Family Law matter low.

Parties cannot be divorced except by a Court Order. A divorce is only necessary to allow the spouse to remarry. So, even after settling everything outside court, someone has to pay the court fees to get the divorce. Spouses often include who will pay for the divorce in their settlement. 

The best way to protect yourself, your children, and your financial security, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Certified Specialist in Family Law (and author of the book to the left), John Schuman, has extensive experience assisting high net-worth clients on complicated legal matters, including stock options. Contact him right now by using the contact form below, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

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