N.P. v. D.H., 2023 ONCJ 2

DATE: January 3, 2023 COURT FILE NO. D10556/17

ONTARIO COURT OF JUSTICE

B E T W E E N:

N.P. KENNETH SNIDER, for the APPLICANT APPLICANT

• and -

D.H. LAUREN ISRAEL, for the RESPONDENT RESPONDENT

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

1The respondent (the father) seeks his costs for two motions.

2The first motion was heard on August 10, 2022. It was to enforce his parenting time with the parties’ five-year-old child, as set out in the final court order dated May 17, 2019. The court made an enforcement order, ordered specified parenting time, and found that the father was entitled to his costs of the motion.

3The second motion was heard on November 18, 2022. The father sought an order that the child be returned to Toronto from Owen Sound. The father was also successful on this motion. The court ordered that the child be returned to Toronto by December 31, 2022. See: N.P. v. D.H., 2022 ONCJ 535.

4The court endorsed that the father could submit written costs submissions for both motions. The father seeks costs of $6,500. This is comprised of $3,500 for the first enforcement motion and $3,000 for the second relocation motion.

5The applicant (the mother) submits that if costs are ordered, they should not be more than $500, with payment deferred until after the motions to change are heard. The mother makes this request because:

a) She is on Ontario Works. b) She is the primary caregiver for the child. c) She needs funds to relocate to Toronto pursuant to the November 18, 2022 order. d) These were temporary motions and the evidence filed has not been tested yet by cross-examination. e) The costs claimed by the father are excessive.

Part Two – Legal considerations

6The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

(1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

7Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25.

8Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

9An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

10Subrule 24 (1) states that the successful party at a step in the case is presumptively entitled to costs.

11Subrule 24 (12) reads as follows:

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.

12The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003) 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but not are always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787. Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.

13Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v Balsmeier, 2016 ONSC 3485.

14In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

Part Three – Analysis

15There is no issue that the father was the successful party on both motions. The presumption that he is entitled to costs was not rebutted by the mother.

16No offers to settle were made. The mother alleges that this was unreasonable behaviour by the father. The court disagrees. Before the absence of an offer to settle can be used against a party, the situation has to be one where it is realistic to expect offers to settle to be made. Either/or cases are not conducive to offers to settle – there is no way to compromise. See: Beaver v. Hill, 2018 ONCA 840.

17In the first motion, the father was just moving to enforce the parenting time that he was entitled to. In the second motion, the father was seeking to have the child returned to Toronto. The court found that the mother had not given proper notice of the move and had used self-help, relocating the child over the father’s objection and without court authorization.

18The father shouldn’t have been expected to compromise on either motion.

19The mother should have made an offer to settle on the enforcement motion. Instead, she took an unreasonable position that the father’s parenting time had to be supervised by her.

20The decision that had to be made on the relocation motion was binary – either the child was going to be permitted to temporarily remain in Owen Sound or he was going to be ordered returned to Toronto. The mother cannot be faulted for not making an offer to settle on that motion.

21The father acted reasonably on the motions.

22The mother acted unreasonably by withholding parenting time from the father for almost nine months. She undermined the child’s relationship with the father. She also acted unreasonably by using self-help tactics to relocate the child, without proper notice, over the father’s objection and without the authorization of the court.

23The mother mitigated her unreasonable behaviour by complying with the enforcement order made on August 10, 2022.

24The court also considered that relocation cases are challenging for everyone involved. They are difficult to resolve and often need to be decided by the court. It is understandable for parents to contest such requests. See: Kawamata v. Phan, 2015 ONCJ 96; Bridgeman v. Balfour, 2009 CarswellOnt 7214 (Ont. S.C.J.).

25The case was important for the parties. It was not complex or difficult.

26The rates claimed by the father are reasonable ($400 per hour for a 1993 call to the Bar).

27The mother alleges that the time claimed by the father was excessive. She offered no basis for that submission.

28A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Smith Estate v. Rotstein, 2011 ONCA 491; Zhang v. Guo, 2019 ONSC 5767; Laidman v. Pasalic and Laidman, 2020 ONSC 7068.

29The mother did not prepare her own bill of costs for the second motion (she was self-represented on the first motion).

30Subrule 24 (12.2) provides that a party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party’s own fees and expenses to the court and to the other party. An adverse inference may be drawn against the party who fails to provide such documentation. See: S.W.-S. v. R.S., 2022 ONCJ 11; M.H.S. v. M.R., 2022 ONCJ 28.

31The court draws an adverse inference against the mother for her failure to deliver her own bill of costs for the second motion.

32The court reviewed the father’s bill of costs and finds that the time claimed on the motions was reasonable and proportionate. The father is not seeking his full recovery costs for the two motions, which he set out were about $8,500.

33The court has considered the respondent’s financial circumstances. She is on public assistance. She is primarily raising the child. See: Cassidy v. McNeil, 2010 ONCA 218. However, this consideration is mitigated by the mother’s unreasonable behaviour that necessitated these motions.

34In E.K.B. v Jewish Family and Child Services, S.K.B. and R.G., 2020 ONSC 2924, Justice Freya Kristjanson was faced with a similar argument of impecuniosity by a parent on social assistance when determining costs. At paragraph 19 of her decision, she adopted the comments made by Justice Roselyn Zisman, in Sang v. Suteu, 2016 ONCJ 160, who wrote at paragraph 29 of her decision:

No submissions were made on behalf of the mother as to what amount she was prepared to pay or how she was proposing a cost order be paid. It appears that the mother is content to simply permit the court to make a cost order in the knowledge that the father would for all practical purposes be unable to enforce the order as she has no assets and is in receipt of Ontario Works.

If the court simply made a cost order with no payment terms then the purpose of a cost order that is, to indemnify successful litigants, to encourage settlement and discourage and sanction inappropriate behavior by litigants, would be defeated…

35The court considered the mother’s submission that she is gathering funds to relocate with the child back to Toronto. The start date for paying costs will not commence until after the child is expected to have returned to Toronto (by December 31, 2022).

36The court will also take into consideration the mother’s financial circumstances by permitting her to pay the costs over an extended time period. However, if there is any future finding that the mother has breached the court’s orders, the court may reconsider this term.

37The court will not defer payment of costs until after the motion to change is heard, as requested by the mother. There needs to be an immediate consequence to unreasonable litigation behaviour to prevent it from happening in the future. That is one of the primary purposes of costs orders.

38The mother should have reasonably expected to pay the costs that will be ordered if she was unsuccessful on the motions.

Part Four – Conclusion

39An order shall go as follows:

a) The mother shall pay the father’s costs of the two motions in the amount of $5,000, inclusive of fees, disbursements and HST. This is broken down as $3,000 for the first enforcement motion and $2,000 for the second relocation motion. b) The mother may pay the costs at $150 each month, starting on February 1, 2023. However, if she if more than 30 days late in making any payment, then the entire amount of costs then owing shall immediately become due and payable.