Do family court judges allow money to be thrown away in divorce proceedings?

Costs thrown away: this is defined as fees paid to a lawyer to prepare for a hearing that did not occur because the other side caused a postponement. This happens often in legal divorce proceedings. The phrase ‘costs thrown away’ has become recognized as a legal remedy that is available to judges to force a spouse who causes unnecessary delay to indemnify the other party.

Example of a judgement on costs thrown away

In the case of Caldwell v. Caldwell [2015] O.J. No. 6658, Justice Quinlan found that the husband caused repeated adjournments and specifically forced a delay of the trial. As a result, the wife paid fees of $34,896.98 to her lawyer to prepare for trial and she wanted him to pay her for this.

The judge reviewed the legal principles that govern this issue. Section 131 of the Courts of Justice Act provides considerable judicial discretion on the issue of fixing costs and Rule 24 enumerates the factors that the court may consider in assessing costs. Rule 24 (7) provides:

“If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.”

Justice Quinlan stated “the phrase costs thrown away refers to a party’s costs for trial preparation which have been wasted and will have to be re-done as a result of the adjournment of the trial...costs thrown away are generally payable on a full recovery basis...because the purpose of such an award of costs is to indemnify a party for the wasted time for trial preparation arising from the adjournment.”

In the end, the judge ordered the husband to pay the wife costs thrown away in the amount of $16,667.50.