Jill is really frustrated. Jack has failed to provide the financial documentation she needs to determine his “true” income for support purposes. As a result, Jill’s lawyer has recommended that she obtain a court order forcing Jack to provide the information. Since it is Jack who is refusing to comply, Jill feels that he should be responsible to pay for all the legal fees associated with this court proceeding. However, Jill’s lawyer made it clear that although she will make the request, the final decision is within the judge’s entire discretion. The judge may, or may not, make an “award of costs” forcing Jack to pay some or even (more rarely) all of Jill’s legal fees.
The number one frustration encountered by a client in a separation process is when he/she is obligated to pay an important amount of legal fees to start a court proceeding just to compel an ex-spouse to do things that he/she should have been doing readily and willingly (i.e., providing financial disclosure, paying child support, paying their share of joint debts, signing a consent to travel abroad with the children, etc.). In Ontario, the court process is designed to promote settlement discussions between the spouses. Thus, to move the matter towards settlement, the spouses have the obligation to participate in various types of conferences (i.e., case conference, settlement conference, and trial management conference) before they can proceed to adjudication processes (processes where evidence is presented to the judge and the judge imposes a decision on the parties). While a conference is a less costly settlement oriented process than an adjudication process, judges do not usually award costs in the context of those conferences, unless it is very clear that one party has abused the process.
As a result, it is important to understand that before engaging into a court proceeding (conference or adjudication), you must be able to pay for all the legal fees stemming from the process as you may, in the end, only be able to recover a slim portion from your ex. Court should always be the last alternative in a separation process because the cost of the process may very well exceed the benefit that you gain in the end.
