Date: January 28, 2022 Court File No.: 608-21 Ontario Court of Justice 7755 Hurontario Street, Brampton, ON L6W 4T6
Applicant: Sheronette McKenzie Respondent: Cedrick Barrant
Endorsement
Costs decision
Before: M. Cheung J.
1This is the court’s costs decision in regard to the Application for a final restraining order dated September 10, 2021. Released in chambers. No parties present.
Chronology of these proceedings
2The Applicant commenced these proceedings seeking a restraining order on September 10, 2021.
3The Applicant brought a motion without notice on the Respondent seeking a temporary restraining order. A temporary restraining order was granted by this court on September 10, 2021.
4The matter returned for a motion review on October 14, 2021. On that date, the Respondent had filed an Answer and affidavit sworn on October 7, 2021.
5On October 14, 2021, the court did not alter the temporary order in place at the time and set the matter down for the hearing of the application for final restraining order, to be heard on November 12, 2021.
6By the hearing date of November 12, 2021, the Respondent withdrew his Answer and filed an additional affidavit sworn on November 2, 2021. The Respondent attended the court hearing scheduled on November 12, 2021 and did not oppose the making of a final restraining order. However, despite withdrawing his Answer, the Respondent took the position that the final restraining order ought to terminate as soon as the parties signed an agreement of purchase and sale relating to a property owned by the two of them.
7After hearing from the parties on November 12, 2021 and after reviewing the evidence filed in the hearing, the court ordered a final restraining order without any date of termination.
Request for costs and positions of the parties
8The court has received costs submissions from each party.
9The Applicant seeks her costs for this application. She has provided a Bill of Costs together with her submissions. the Application claims costs in the amount of $2,062.25, on the basis that she was successful and on the basis that the Respondent’s conduct in the litigation resulted in wasted time, money and effort on her part.
10The Respondent has asked for costs to be paid to him in the amount of $5,000 for legal fees expended by him. He submits that he is entitled to costs in that amount as a result of the conduct of the Applicant and the fact that he made an offer to settle which narrowed the issue before the court to whether or not the restraining order would have a fixed termination date. The Respondent states that the Applicant is not entitled to costs due to the fact that she never made a claim for costs in her Application and states that her bill of costs is inaccurate as it includes work done before the date of the temporary restraining order and work done after the date of the Respondent’s offer to withdraw.
Analysis
11The courts have a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, s. 131(1), which sets out three specific principles:
a) the costs of a case are in the discretion of the court. b) the court may determine by whom costs shall be paid; and, c) the court may determine to what extent the costs shall be paid.
12Rule 24 of the Family Law Rules (FLR) 1 governs costs awards. Subrule 24(1) creates a presumption of costs in favour of the successful party.
13In setting the quantum of costs, the court is to take into consideration the factors listed in Rule 24(12).
Setting Costs Amounts
24(12) In setting the amount of costs, the court shall consider,
a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: i. each party’s behaviour, ii. the time spent by each party, iii. any written offers to settle, including offers that do not meet the requirements of rule 18, iv. any legal fees, including the number of lawyers and their rates, v. any expert witness fees, including the number of experts and their rates, vi. any other expenses properly paid or payable; and b) any other relevant matter.
14The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:
a) to partially indemnify successful litigants; b) to encourage settlement; c) to discourage and sanction inappropriate behaviour by litigants and; d) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules
15Cost awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.
16One of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding: Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.) at para. 32, aff’d 2010 ONCA 326 at para. 4.
17Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party.
18Consideration of success is the starting point in determining costs, Sims-Howarth v. Bilcliffe, 2000 ONSC 22584, [2000] O.J. No. 330.
19There is no question that the Applicant was the successful party.
20She made a claim for a temporary restraining order and a final restraining order and both were granted by the court.
21The Respondent’s positions throughout the course of the proceedings were not accepted by the court.
22On October 14, 2021, the Respondent opposed the application on the basis that there was no jurisdiction for the court to order a restraining order under the Family Law Act or the Children's Law Reform Act because the parties had not been in a relationship for six years and as such, they were merely co-investors in a property. He abandoned that argument as the case approached the final hearing date and sought to retract statements he made under oath in his affidavit of October 7, 2021.
23The Respondent served a Notice of Withdrawal dated November 5, 2021 completely withdrawing his Answer, but nevertheless, he attended the focused hearing on November 12, 2021 and continued to assert a position that although he was consenting to a restraining order, it should have a termination date that coincided with the signing of the agreement of purchase and sale of the parties’ jointly owned property. The jointly owned property remained the subject of legal dispute for which each party had retained counsel.
24On November 12, 2021, the court granted a final restraining order with no date of termination.
25The Applicant is entitled to costs as the successful party.
26The Respondent is not entitled to costs.
27Rule 24(4) states that a court may disentitle a successful party their costs if their conduct was unreasonable. The Respondent urged the court to do so. However, there is nothing in the Applicant’s conduct that I found to be unreasonable.
28The Respondent claims that the Applicant ought not to be awarded any costs in this matter to the Applicant because she never actually made a claim for costs in her Application.
29It is accurate that the Application dated September 10, 2021 does not make a specific request for costs.
30The Ontario Court of Justice derives its authority from statute. Substantive claims for determination by the court must be application-based or claim-based.
31As noted above, the authority for the court to order costs is given by the Courts of Justice Act and the framework for a costs determination is anchored in the Family Law Rules.
32The legislative authority to award costs given by the Courts of Justice Act is extremely broad and discretionary, including whether or not to grant costs.
33That discretion may be constrained by specific provisions of an Act or the rules of court.
Costs
131 (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
34Neither party pointed the court to any legislation relevant to this issue that convinced the court that it is constrained when ordering costs in a proceeding to only those situations where a formal claim for costs was made in the written pleadings submitted by a party.
35The cost award is an essential mechanism that assists the court in controlling its own process. The cost award is a vital support to the administration of justice. The prospect of an unfavourable costs award encourages responsible and reasonable litigation conduct. The possibility of an unfavourable costs award promotes early resolution and settlement.
36To bind the court’s ability to order costs to only those circumstances where a party “ticked off the box” would, in those circumstances, render very important costs incentives meaningless. If that were the case, the door would be open for parties to litigate with impunity.
37A court may wish to take into consideration whether or not a costs claim was “ticked off” in the pleadings, however, a failure to do so, in my view, does not fetter a court from its ability to make a costs award, if the circumstances otherwise warrant it.
38An award of costs is subject to:
a) the factors listed in subrule 24(12), b) subrule 24(4) pertaining to unreasonable conduct of a successful party, c) subrule 24(8) pertaining to bad faith, d) subrule 18(14) pertaining to offers to settle, and e) the reasonableness of the costs sought by the successful party.
Berta v. Berta, 2015 ONCA 918, at paragraph 94.
39Under the Family Law Rules, costs on a full indemnity basis may be ordered in two circumstances:
a) Where there has been bad faith (Rule 24(8)) or b) As a Rule 18(14) costs consequence, where a party’s Rule 18 offer, which is not accepted by the other party, achieves as favourable a result or a better result than the final result in the motion.
40Neither party attached any written offer to settle to their submissions. The Respondent mentions in his submissions “a few” offers to settle given in this matter. The Applicant does not appear to have made any offer to settle in this proceeding. However, the Applicant was wholly successful in her claim.
41The Respondent’s highest offer to settle was to agree to a final restraining order that ended upon the signing of the parties’ agreement of purchase and sale for their jointly owned property. The court was not prepared to order a restraining order that terminated upon some future event happening, exact date unknown. In the result, the court ordered a restraining order without a fixed date for termination.
42The Applicant was completely successful in her claims before the court.
43Although the Applicant was self-represented at court, the Applicant incurred legal fees for advice and assistance behind the scenes. The Applicant was organized and focused in her presentation and argument in this case.
44The Applicant attached the bill of costs she received from the lawyer who assisted her. The bill of costs was reasonable as to rate and disbursements.
45The Applicant has appropriately removed from the costs total being sought by her, any cost in the lawyer’s bill that was tied specifically to the issue of the sale of the property, which was a matter not before the Ontario Court of Justice.
46The Respondent’s submissions cite that the $5,000 he incurred for legal costs is a fair and reasonable quantum of costs if he were the one entitled to costs. That is more than twice the amount of legal costs the Applicant seeks.
47There was a nexus between the Respondent’s conduct in this litigation and the legal costs spent by the Applicant. The Respondent took unreasonable positions before the court. The Respondent made assertions under oath which were false. In response to the Respondent’s sworn statements, the Applicant compiled much evidence that proved that the father’s statements were untruthful. The Respondent then sought to retract his sworn statements. I find that the Respondent conducted himself in this litigation intentionally to mislead the court.
48This is bad faith conduct which is quite apart from and additional to the conduct that formed the foundation for the need for the restraining order in the first place.
Order
49In all the circumstances, it is fair and reasonable for the Respondent to pay to the Applicant costs in the amount of $2,062.25. The Respondent shall pay this costs award to the Applicant, within 30 days from today and I encourage the parties to make arrangements for same via the lawyers who are helping them with their other legal matters so as not to violate the terms of the restraining order.
50Should the Respondent seek to bring a motion to change for the purposes of terminating the restraining order, he shall file clear proof that he has paid the costs order before he is permitted to have his Motion to Change issued.
51Judicial secretary is asked to release this costs decision to the parties via email.
Justice M. Cheung