Superior Court Cost Penalties
Aug 2007
Contents
page
Introduction 1
Cost Decision Outcomes 1
Cost Penalties 1
Representation 6
Sex of Judge 9
Conclusions 10
Appendixes 11
Introduction
This study examines 404 cases where rulings on cost penalties were made in divorce related cases by the Ontario Superior Court. All cases between husband and wife where a monetary figure is given were included. In a small number of cases cost penalties were given out for several previous hearings, so the number of cases does not correspond with the number of wins. Some cases were missing information so could not be used in particular segments. The cases used for this study have been taken from the first half of the Canlii database. 10,500 cases were available on Canlii under the search term ‘ costs ‘. Most cases used in this study cames from the first third of the database. Subsequent listings typically only requested cost submissions from the parties.
Cost Decision Outcomes
|
Total Wins |
Female Wins |
% Female Wins |
Male Wins |
% Male Wins |
Divided Success |
% Divided Success |
|
|
|
|
|
|
|
|
|
409 |
264 |
64.5 |
87 |
21.3 |
58 |
14.1 |
It can be concluded that females win (64.5/21.3) 3 times for every time a man wins, as determined by judicial decisions on costs.
Discrimination Index = % Female Wins - % Male Wins
= 64.5 – 21.3
= 43.2 %
Cost Penalties
Cost Penalties Against Women = (13.7 + 15 + 10 + 3.5 + 4 + 2.5 + 3 + 12 + 5 + 8.5 + 14 + 5.8 + 18 + 9.5 + . 1 + 2 + 22.5 + 3.5 + 89 + 9.5 + 2.4 + 16 + 3 + 35 + 16 + 60 + 6.4 + 31 + . 13.6 + 45.5 + 32 + 3 + 2 + 32 + 1.5 + 0.1 + 200 + 1.5 + 2 + 7.5 + 40.7 + . .. 47 + 1.5 + 28 + 5 + 82.8 + 10 + 2 + 67 + 3.5 + 73.4 + 27.9 + 20 + 15 + 3 . + 12 + 15 + 0.8 + 2.7 + 2.7 + 211 + 7.5 + 5.8 + 5 + 0.6 + 10 + 20 + 6 + 7 . + 0.3 + 0.8 + 48 + 4.3 + 3 + 4.8 + 32.5 + 5.5 + 1.5 + 8 + 4.2 + 0.6 + 1.5 + . 252.9 + 3 + 6.3 + 10 + 0.2 ) / 87
= 1883.1 / 87
= 21.6 K
Cost Penalties Against Men = ( 9.4 + 10 + 25.5 + 9 + 20 + 11.1 + 4.5 + 3 + 4 + 22.5 + 3.8 + 12 + 5 + 2,225 . + 1.2 + 3 + 10.9 + 7.2 + 3.5 + 12 + 4 + 8 + 18 + 2 + 9.6 + 24.4 + 4.7 + 8 + . .. 3.5 + 10 + 15 + 40 + 36.9 + 1 + 9 + 4 + 40 + 4.5 + 10 + 2.5 + 5.2 + 6 + 2.1 . .. + 99 + 20 + 2.5 + 13.5 + 15 + 85.8 + 2.5 + 17 + 14.1 + 1.4 + 16 + 10 + 1.5 + . 70 + 5 + 2 + 25 + 10 + 6.5 + 25 + 95 + 4.3 + 49 + 1.8 + 29.6 + 12.1 + 7.5 + . .. 144.6 + 42.8 + 28.7 + 9.7 + 11 + 7 + 4 + 84.9 + 997.7 + 19.5 + 3 + 16.5 + .. .. 1.5 + 9 + 1.5 + 3.5 + 7 + 183.8 + 9.2 + 9.5 + 34 + 8.2 + 19.5 + 15 + 10.5 + .. .. 10 + 12 + 25 + 3.5 + 35 + 48 + 38 + 0.9 + 14 + 15 + 1.5 + 1.5 + 2.1 + 85 + 2 .. + 1.8 + 10 + 36 + 23 + 5 + 4 + 15 + 15 + 2.3 + 12 .4 + 4.5 + 7 + 12 + 10.3 + … 10 + 6.6 + 45.9 + 10 + 20 + 14.5 + 8.5 + 5 + 1 + 2.1 + 6.9 + 2 + 15 + 3.4 + … 72 + 22 + 6.5 + 1.5 + 3.5 + 2.5 + 5 + 10 + 9 + 5.5 + 8 + 1.2 + 17.9 + 12.6 + .. 17.9 + 15 + 5.9 + 4.6 + 13.4 + 4.5 + 6.5 + 150 + 6.6 + 2.6 + 3.8 + 5.9 + …… 112.4 + 0.7 + 8.9 + 0.8 + 58.7 + 7.5 + 7.4 + 34.3 + 2.1 + 9.4 + 0.3 + 62 + …. 4.5 + 7.8 + 14.3 + 15 + 4.7 + 89.6 + 12.4 + 6 + 6 + 44.7 + 10 + 34 + 31.5 + .. 0.7 + 6 + 3.1 + 103.4 + 8.7 + 12 + 31 + 33.8 + 3.5 + 35 + 1.3 + 75 + 6.5 + … 7.5 + 3.8 + 18 + 10.6 + 20 + 16 + 16.2 + 12 + 15.5 + 320 + 7.3 + 3 + 39.5 + .. 3 + 31.4 + 8.5 + 3.5 + 8.5 + 5 + 8.5 + 3.8 + 4 + 1 + 10 + 49 + 0.5 + 5.7 + 4 … + 22.5 + 5.8 + 6.4 + 50.7 + 5 + 3 + 75 + 10.8 + 117 + 60.9 + 7 + 6 + 2.3 + 2 .. + 20.6 + 5 + 15.8 + 3.3 + 48.6 + 8 + 90 + 12.8 + 4.3 + 15.7 + 4.7 + 3.5 + …. 15.7 + 4.5 + 8.5 + 7.4 + 30 + 4.1 + 36.4 + 6.4 ) / 264
= 8329.9 / 264
= 31.6 K
It can be concluded that on average females pay 31.6 % lower cost penalties than men
For the purposes of this portion of the study divorce actions mean fully contested divorces that culminated in a trial of the issues. Cases where the parties came to agreement and only minor deliberation of a single issue remained, have been excluded. Costs of previous interim hearings may be included in the total penalty. 82 cases where a male had to pay a females lawyers costs could be found, and there were 28 cases where a female had to pay for a males lawyer. The results are as follows
Cost Penalties Against Women = ( 10 + 32.5 + 8 + 252.9 + 10 + 12 + 8.5 + 22 + 89 + 9 + 60 + 13.6 + 45.5 + …. 32 + 200 + 40.7 + 7.5 + 49.6 + 82.8 + 27.5 + 67 + 54.6 + 15 + 211 ) / 28
= 1287 / 28
= 45.9 K
Cost Penalties Against Men = ( 9 + 20 + 4.5 + 22.5 + 12 + 2250 + 24.4 + 15 + 36.9 + 40 + 10 + 20 + 85.8 + … 70 + 25 + 77 + 95 + 49 + 29.6 + 7.5 + 144.6 + 42 + 28.7 + 9.7 + 11 + 84.9 + … 997 + 19.5 + 7 + 183.8 + 25 + 35 + 48 + 38 + 85 + 36 + 15 + 12 + 20.3 + ….. 14.5 + 2 + 22 + 9 + 17.9 + 12.6 + 17.9 + 15 + 5.9 + 150 + 7.5 + 34.3 + 62 + …. 14.3 + 89.6 + 90 + 44.7 + 34 + 31.5 + 103 + 12 + 31 + 33.8 + 75 + 3.8 + …… 18.0 + 10.6 + 7.3 + 39.5 + 31.4 + 8.5 + 5 + 49 + 5.7 + 6.4 + 50.7 + 10.8 + … 75 + 20.6 + 5 + 3.3 + 48.6 + 8.5 + 30 + 34.6 ) / 82
= 6290.8 / 82
= 76.7 K
It can be concluded that on average females pay 40.2 % lower cost penalties on overall divorce actions than men
80 cases could be found that were clearly interim motion. In 53 men had to pay the costs of their spouses lawyer and in 27 women had to pay costs. The results are as follows.
Cost Penalties Against Women = (5.8 + 0.65 + 0.3 + 0.75 + 1.5 + 0.15 + 15 + 3 + 1 + 2 + 3 + 3.5 + 3 + 2 + … 1.5+ 1.5 + 5.0 + 3.5 + 9.3 + 9.3 + 9.3 + 0.8 ) / 27
= 123.23 / 27
= 4.5 K
Cost Penalties Against Men = ( 3.8 + 1.2 + 3.5 + 12 2.5 + 5.5 + 4.7 + 3.5 + 5.2 + 6 + 2.1 + 93.4 + 15 + 2.5 … + 1.4 + 5.3 + 5.3 + 5.3 + 5 + 2 + 1.8 + 7 + 3 + 1.5 + 9.2 + 1.5 + 2.1 + 2.0 + … 7.6 + 7.6 + 7.6 + 5 + 2.3 + 10 + 6.9 + 6.5 + 2.5 + 5.5 + 4.6 + 13.4 + 4.5 + …. 6.6 + 5.9 + 4.7 + 1.3 + 7.5 + 15.5 + 3 + 3 + 3.8 + 0.5 + 5 + 3 + 0.75 + 3 + …. 2.3 + 2.0 ) / 53
= 361.75 / 53
= 6.8 K
It can be concluded that on average females pay 33.8 % lower interim cost penalties than men
53 cases could be found that were post divorce support variations. In 42 men had to pay the costs of their spouses lawyer and in 11 women had to pay costs. The results are as follows.
Cost Penalties Against Women = ( 5 + 4.8 + 5.5 + 3.5 + 4 + 2.5 + 9 + 16 + 32 + 6.4 + 5.1 ) / 11
= 93.8 / 11
= 8.5 K
Cost Penalties Against Men = ( 11.1 + 3 + 4 + 5 + 18 + 10 + 9.6 + 40 + 1 + 2.5 + 13.5 + 17 + 14.1 + 25 + … 9.5 + 8.2 + 12 + 12.4 + 7 + 6.6 + 45.9 + 15 + 72 + 1.5 + 3.5 + 8 + 3.8 + 7.4 … + 0.25 + 15.0 + 12.4 + 6 + 0.75 + 3.1 + 8.7 + 6.5 + 4 + 5.8 + 4.3 + 15.7 + …. 4.1 + 6.4 ) / 42
= 479.6 / 42
= 11.4 K
It can be concluded that on average females pay 25.4 % lower cost penalties on post divorce support variations than men
Representation
Analysis of representation omits cases of divided success and focuses on cases where the judge has made a decision who the won and who lost. In 5 cases where a male won the sex of his lawyer could not be determined. In 17 cases where a female won the sex of her lawyer could not be determined. Those cases have also been omitted.
|
|
Total Cases |
Male Lawyer |
% Male Lawyer |
Female Lawyer |
% Female Lawyer |
Self Represented |
% Self Represented |
|
Male Litigants |
334 |
207 |
62.0 |
56 |
16.8 |
70 |
21.2 |
|
Female Litigants |
334 |
192 |
57.5 |
125 |
37.4 |
16 |
5.1 |
Outcomes by Representation
|
|
Total Cases |
Male Lawyer |
% Male Lawyer |
Female Lawyer |
% Female Lawyer |
Self Represented |
% Self Represented |
|
Male Wins |
84 |
57 |
67.8 |
25 |
29.7 |
2 |
2.4 |
|
Male Losses |
250 |
151 |
60.4 |
31 |
12.4 |
68 |
27.2 |
|
Female Wins |
250 |
141 |
56.4 |
105 |
42.0 |
4 |
1.6 |
|
Female Losses |
84 |
51 |
60.7 |
20 |
23.8 |
13 |
15.4 |
Male Representation
|
|
Total Cases |
Wins |
% Wins |
|
Male Lawyer |
207 |
57 |
27.5 |
|
Female Lawyer |
56 |
25 |
44.6 |
It can be concluded that a male has a ( 44.6 – 27.5 ) 17.1 % greater chance of winning if he hires a female lawyer than if he hires a male lawyer for family actions in Superior Court
Female Representation
|
|
Total Cases |
Wins |
% Wins |
|
Male Lawyer |
192 |
141 |
73.4 |
|
Female Lawyer |
125 |
105 |
84.0 |
It can be concluded that a female has a ( 84.0 – 73.4 ) 10.6 % greater chance of winning if she hires a female lawyer than if she hires a male lawyer for family actions in Superior Court
Self Represented Litigants
The database contained 87 cases where a litigant won or lost, which were contested by one or more self represented parties. The following table reproduces the results.
|
|
Total Cases |
Wins |
% Wins |
|
Male Litigant |
70 |
2 |
2.9 |
|
Female Litigant |
17 |
4 |
23.5 |
|
Total |
87 |
6 |
6.9 |
It can be concluded that self represented litigants have a 6.9 % chance of winning in Superior Court family actions. Female self represented parties are (23.5/2.9) 8.1 times more likely to win than males
The data for self represented parties included 4 cases which had 2 self represented litigants. In these cases a self represented party necessarily had to be the winner. In 3 of the 4 cases a female litigant won, so female self represented parties won 3 to 1 compared to men.. To determine a self represented persons odds if opposed by a lawyer those cases must be omitted. The following table reproduces those results.
|
|
Total Cases |
Wins |
% Wins |
|
Male Litigant |
69 |
1 |
1.5 |
|
Female Litigant |
14 |
1 |
7.1 |
|
Total |
83 |
2 |
2.4 |
It can be concluded that self represented litigants have a 2.4 % chance of winning in Superior Court family actions when the opposing party is a lawyer Female self represented parties are (7.1/1.5) 4.7 times more likely to win than males
|
|
Male Judge |
Female Judge |
|
Male Wins |
61 |
24 |
|
Female Wins |
171 |
90 |
|
Divided Success |
29 |
18 |
|
Total |
261 |
133 |
Discrimination Index for a Male Judge = % Female Wins - % Male Wins
= (171/261 x 100) – (61/261 x 100)
= 65.5 – 23.4
= 42.1 %
Discrimination Index for a Female Judge = % Female Wins - % Male Wins
= (90/133 x 100) – ( 24/133 x 100)
= 67.7 – 18.0
= 49.7
It can be concluded that males are 7.6 % more likely to win when appearing before a male judge than if the case is heard by a female judge.
|
Total Wins |
Female Wins |
% Female Wins |
Male Wins |
% Male Wins |
Divided Success |
% Divided Success |
|
|
|
|
|
|
|
|
|
409 |
264 |
64.5 |
87 |
21.3 |
58 |
14.2 |
From 404 cases containing record of 409 cost penalties it can be concluded women won 43.2 % more often than men
|
|
Average Cost Penalty |
Divorce Action Cost Penalty |
Interim Cost Penalty |
Support Variation Cost Penalty |
|
|
|
|
|
|
|
Male Litigant Wins |
21. 6 K |
45.9 K |
4.5 K |
8.5 K |
|
Female Litigant Wins |
31.6 K |
76.7 K |
6.8 K |
11.4 K |
From 404 cases containing record of 409 cost penalties it can be concluded women pay 31.6 % lower cost penalties than men. The range varies for different actions from 25.4 % lower for support variations to 40.1 % lower for overall divorce awards.
|
|
Female With a Female Lawyer |
Female with a Male Lawyer |
Female Self Represented |
|
|
|
|
|
|
Male with a Female Lawyer % Wins |
21.4 |
53.3 |
100.0 |
|
Male with a Male Lawyer % Wins |
21.0 |
27.6 |
83.3 |
|
Male Self Represented % Wins |
0.0 |
2.6 |
25.0 |
From a varying number of representation combinations in cases where one or the other litigant won, it can be seen that men have the highest odds when they have a female lawyer and the lowest odds when they are self represented. Women also have the highest odds when they have a female lawyer and the lowest odds self represented
|
|
Male Judge |
Female Judge |
|
|
|
|
|
Male % Wins |
23.4 |
18.0 |
|
Female % Wins |
65.5 |
67.7 |
|
Divided Success |
11.1 |
14.3 |
|
Total |
100.0 |
100.0 |
From 261 cases where a litigant appeared before a male judge it can be concluded women won 42.1 % more often than men. From 133 cases where a litigant appeared before a female judge, women won 49.7 % more often than men.
|
Winners sex |
Lawyers sex |
|
Case |
Judges sex |
Judge |
Costs
|
Description and amount |
|
m |
F v m |
|
Bourque v. Haney, 2003 CanLII 2068 (ON S.C.) |
|
Blair |
Full and partial |
Husband wins interim motion to stop wife moving with children, asks 6.9 K gets 5.8 K |
|
m |
F v f |
E |
O'Connor v. O'Connor, 2007 CanLII 8930 (ON S.C.) |
F |
Blishen |
Partial |
Motion to vary support, husband claims 19.8 K and gets 5 K, wife claims 8.4 K |
|
m |
M v m |
Ce |
Costabile v. Costabile, 2004 CanLII 42935 (ON S.C.) |
F |
Boyko |
Partial |
Interim motion, $ 650 costs |
|
m |
F v f |
E |
Ladisa v. Ladisa, 2004 CanLII 15138 (ON S.C.) |
F |
DeSousa |
Partial |
Divorce action, wife claims 35 K costs, husband claims 28 K and gets 10 K |
|
m |
M v m |
E |
Marks v. Tokarewicz, 2003 CanLII 1995 (ON S.C.) |
F |
DeSousa |
Partial |
20K costs |
|
m |
M v f |
E |
Sloss v. Forget, 2005 CanLII 4843 (ON S.C.) |
F |
DeSousa |
Partial |
Motion for mobility and support, 6 K costs |
|
m |
F v m |
E |
Viertelhausen v. Burbridge, 2006 CanLII 11238 (ON S.C.) |
F |
DeSousa |
Partial |
Support trial, 7 K costs |
|
m |
M v f |
Ce |
Merkand v. Merkand, 2006 CanLII 33420 (ON S.C.) |
F |
Ferguson |
Partial |
Interim motion on access variation, 0.3 K costs |
|
m |
M v sr |
T |
Dagorne v. Cormack, 2007 CanLII 28223 (ON S.C.) |
F |
Herman |
Partial |
Interim motion, 0.75 K cost penalty, secomnd interim 0.75 cost penalty, wife hasn’t paid first penalty |
|
m |
F v m |
T |
A.J.K. v. S.L.M., 2003 CanLII 2409 (ON S.C.) |
F |
Karakatsanis |
Full |
Wife gets 48 K cost penalty on custody access action. |
|
m |
F v m |
T |
Bespaly v. Bespaly, 2003 CanLII 2287 (ON S.C.) |
F |
Macdonald |
Partial |
Contempt motion for arrears, 4.25 K cost including 0.75 K for cost submissions |
|
m |
F v m |
E |
D.W. v. C.O, 2006 CanLII 16361 (ON S.C.) |
F |
Mackinnon |