When Will a Court Order the Other Party to Pay Your Legal Costs in Ontario?
Legal proceedings are expensive. One of the questions clients ask most frequently is: can I make the other side pay my legal fees?
In Ontario family law, the answer is: sometimes yes — and the circumstances matter enormously.
The General Rule: Costs Follow the Event
Ontario courts have broad discretion to order costs. The general principle is that costs follow the event — meaning the party who wins is entitled to some contribution toward their legal costs from the losing party.
However, in family law cases, courts have additional considerations. The court will look not just at who “won,” but at how each party conducted themselves throughout the proceedings.
The Section 24 Framework
Under Rule 24 of the Family Law Rules, costs in family law cases are governed by a detailed framework. The court considers:
- Whether each party achieved success on the issues
- Whether either party made offers to settle that the other party failed to beat
- The reasonableness of each party’s positions
- Whether either party engaged in bad faith, made false statements, or caused unnecessary delay
- The proportionality of the costs claimed
Offers to Settle: A Critical Factor
One of the most powerful tools in cost-related strategy is the offer to settle.
If you make a formal written offer to settle and the other party rejects it — and the final court order is no better for the rejecting party than your offer — the rejecting party may be ordered to pay your costs from the date of the offer on a more generous (substantial indemnity) basis.
This creates a significant incentive for parties to make and accept reasonable settlement offers.
Practical implication: Never enter litigation without thinking carefully about what settlement offer to make, when to make it, and at what terms.
Bad Faith and Unreasonable Conduct
Courts in Ontario can order costs against a party who has:
- Made false statements in court documents or testimony
- Concealed or misrepresented financial information
- Brought unnecessary motions
- Delayed proceedings without justification
- Acted in bad faith
In Yang v. Li, 2024 ONSC 4801 — a case Miao He litigated — the court awarded costs against the moving party specifically because of a lack of candour in their financial disclosure. All eight claims were dismissed, and the court’s costs award reflected its displeasure with the other party’s conduct.
This is an example of how courts use costs to deter misconduct — not just to compensate winners.
Types of Costs Orders
| Type | What It Means |
|---|---|
| Partial indemnity | The losing party pays a portion of the winner’s fees (typically 50–70%) |
| Substantial indemnity | The losing party pays a larger portion (typically 80–90%) — triggered by certain conduct or after a rejected offer |
| Full indemnity | Rare — covers actual legal fees; typically reserved for egregious misconduct |
| Costs thrown away | Compensates a party for costs wasted due to the other party’s conduct (e.g., an adjournment caused by late disclosure) |
How to Position Yourself for a Costs Award
- Make disclosure promptly and completely — incomplete or late disclosure is a costs risk
- Make a reasonable offer to settle early — and document it formally
- Do not bring unnecessary motions — each motion that fails weakens your costs position
- Be truthful in all documents and testimony — lack of candour is severely penalized
- Respond to communications in a timely way — delays caused by you will be held against you
Practical Advice
Costs are not guaranteed, even if you win. But how you conduct your case significantly affects whether you receive costs — and how much.
Before bringing any motion, ask your lawyer: what is our costs risk if we lose? And what is our costs recovery if we win? These are not academic questions — they should inform every litigation decision.
📞 647-930-6688 · Book a Consultation
This article was written by Miao He (何淼), Ontario lawyer (LSO #83315K) and China-licensed lawyer, focusing on family law for the Chinese-Canadian community in the GTA.
Speak with Miao He
Mandarin & English · Markham office · GTA & Ontario
