Court Cases & Orders

Could Husband Dip Into Savings to Pay $125,000 in Wife’s Costs? Court Finds Husband’s Evidence of “Undue Hardship” Lacking

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Written by Russell Alexander / (905) 655-6335

Could Husband Dip Into Savings to Pay $125,000 in Wife’s Costs? Court Finds Husband’s Evidence of “Undue Hardship” Lacking

In a recent case called Cassidy v. Cassidy, the court was asked to resolve competing costs arguments between the former husband and wife.  As the successful party in their now-concluded family law trial, the wife wanted her full legal costs – about $125,000.

In response, the husband said that paying this amount would impose undue hardship on him since his income was being eaten up by his child and spousal support obligations. He suggested he should pay $20,000 toward her legal costs instead.

The court noted the law presumes that the successful party in the litigation is entitled to recover his or her costs in a motion, case or appeal.  This presumption is rebutted if the successful party behaved in an “unreasonable” manner.

The court examined that aspect of reasonableness and bad faith in this case and noted both parties had levelled accusations against each other. But as the court noted:

This is a high-conflict case that has spanned several years with different discrete instances of litigation. The parties have a history of mutual unreasonableness with each other. I have considered all the allegations leveled by the parties and only make mention of significant instances of unreasonable behaviour.

These included the husband’s unreasonable interpretation of various prior court orders that had been made against him.  Prominent among these was his refusal to comply with his financial disclosure obligations as ordered.  This was tantamount to bad faith, which would normally entitle the wife to her full costs.

However, at times the wife had acted unreasonably, herself.  Although both spouses had made offers to settle along the way, at one point the wife refused to even attempt settlement discussions, which increased the costs of the litigation.  This disentitled her to recover the full $125,000.

The court also entertained the husband’s argument that ordering him to pay that entire amount was not fair or reasonable and that in his circumstances it amounted to an undue hardship.  He pointed out that his monthly net income was about $13,000, and from that amount he was already paying $3,000 a month in spousal support, $3,000 a month in child support, and $4,000 a month in retroactive child support.  This left him with little from which to pay the hefty costs order.

To this, the court stated:

Mr. Cassidy did not provide any information on whether he has any savings or other investments he can draw on to satisfy these financial obligations. Claims of undue hardship must be supported by sufficient evidence. Mr. Cassidy’s claim is supported by insufficient evidence. The deficiencies in the evidence advanced will go to weight.

The court added that as the unsuccessful party in their very protracted litigation, the husband should have reasonably expected that he would eventually be hit with a significant costs award in his wife’s favour.

With that said, the court did adjust the final amount, to take into account the proportionality of the overall costs award.  It settled on a figure of 65 percent of the wife’s legal bill, totaling $75,600.  It ordered the husband to pay this amount over four months.

For the full text of the decision, see:

Cassidy v. Cassidy, 2019 

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.