DATE: February 19, 2025

COURT FILE NO. D11537/17
ONTARIO COURT OF JUSTICE

B E T W E E N:

NDUBUKA UWAEZUOKE
BOLANIE AKINNUSI, for the APPLICANT
APPLICANT

• and –

IJEOMA UWAEZUOKE
ACTING IN PERSON
RESPONDENT

RENATTA AUSTIN, on behalf of THE OFFICE OF THE CHILDREN’S LAWYER, on behalf of the subject children
HEARD: IN CHAMBERS

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On January 24, 2025, the court delivered oral reasons for decision after a focused trial of parenting issues concerning the parties’ two children, who are 9 and 14 years old (the children).

[2] The applicant (the father) was the successful party at trial. He was given permission to make written costs submissions and the respondent (the mother) was given time to provide a written response.

[3] The father seeks his full recovery costs of $16,050. The mother submitted that “I will pay when I have the money”. She said she could not afford to pay costs at this time. The Office of the Children’s Lawyer, on behalf of the children (the OCL), did not make costs submission.

Part Two – General costs principles

[4] The costs provisions in the Family Law Rules (all references to the rules in this decision are to the Family Law Rules) were amended on January 22, 2025. The court will apply those amendments in this decision.

[5] The 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).

[6] Costs 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, para 25.

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

[8] An award of costs is subject to the factors listed in subrule 24(14), subrule 24(7) pertaining to unreasonable conduct of a successful party, subrule 24(10) pertaining to bad faith, subrule 24(12) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, para 94.

Part Three – Did the father’s offer to settle attract the costs consequences set out in subrule 24(12)?

[9] Subrule 18(4) sets out that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any.

[10] The father made a non-severable offer to settle dated January 6, 2025. In it, the father withdrew any prior offer to settle. He had executed a consent on October 20, 2024. The consent was also signed by the OCL. It was presented to the mother on that date. She did not accept it.

[11] The mother did not make an offer to settle.

[12] The costs consequences of a party’s failure to accept an offer to settle that is as good as or better than the trial result of the person making the offer, is now set out in subrule 24(12). It reads as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

24(12) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as good as or better than the offer.

[13] Subrule 24(13) sets out that the onus of proving that the order is as good as or better than the offer to settle is on the party who claims the benefit of subrule 24(12).

[14] Even if subrule 24(12) does not apply, the court may take into account any written offer to settle, the date it was made and its terms when assessing the reasonableness of a party under sub-clause (iii) of subrule 24(14)(a).

[15] The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. See: Wilson v Kovalev, 2016 ONSC 163.

[16] Close is not good enough to attract the costs consequences of 24(12). The offer must be as good as or better than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482; Axford v. Axford, 2024 ONSC 2864.

[17] Here, the father’s offer to settle (and the consent he previously presented to the mother) were very close to the trial result. However, neither proposal was as good as or better than the trial result.

[18] There were two issues remaining at trial, as the parties had resolved all other issues between them on June 20, 2024. The father was substantially successful on both issues.

[19] The court ordered that the father have sole decision-making responsibility for the children – the mother had sought an order of joint decision-making responsibility for them.

[20] The court also ordered that the father could obtain or renew government documentation for the children, and travel internationally with them without the mother’s consent. The mother had sought orders requiring her consent.

[21] The father’s offer to settle and draft consent were not as good as the final result because the court included terms to its order, proposed by the OCL, that were not included in the father’s proposals, such as:

a) Each parent was to be listed as emergency contacts at the children’s schools and with their service providers.
b) A process was put in place for medical emergencies for the children.
c) The father shall not change the children’s residence more than 100 km of downtown Toronto without the prior written and notarized consent of the mother or a prior court order.

[22] The father did not make his offer to settle severable.

[23] This court has frequently commented on the importance of making severable offers to settle. See: Barrera v. Barrera, 2017 ONCJ 25; G.S.W. v. C.S., 2018 ONCJ 378; S.A. v. Y.M., 2020 ONCJ 107; M.J.L. v. C. L.F., 2022 ONCJ 354.

[24] In Lawson v. Lawson, 2004 O.J. No. 3206 (SCJ), para 26, Quinn J. wrote:

26 I would discourage the making of all-or-nothing offers. The severable variety allows for the prospect that some of the outstanding issues might be settled, thereby reducing the length and expense of the motion or trial, as the case may be. All-or-nothing offers sometimes have a heavy-handed air about them and certainly they possess a much lower chance of being accepted than severable offers.

[25] In Paranavitana v. Nanayakkara, 2010 ONSC 2257, paras 13 and 14, Wildman J. writes:

13 Unfortunately, this offer was not severable. There would have been no disadvantage to the wife in making the custody offer, in particular, severable from the financial and property terms. Severable offers are an underused tool that can confer considerable settlement and cost advantages. Because of the full recovery provisions of Rule 18(14), they can provide much more flexibility to the court to award full recovery for at least a portion of the overall costs, if the party is successful on only some of the issues. Had the custody terms of the wife's offer been severable from the other terms, I would have been prepared to consider ordering full recovery costs on the custody issue from the date of the offer forward. As this was the majority of the trial time, that would have been a significant cost advantage to the wife.

14 However, as the offer was not severable, the wife would have to do as well or better than all the terms of the offer, in order to take advantage of the full recovery cost provisions of Rule 18(14). Since the husband got an additional week of access, as well as an order that spousal support would reduce from $1000 in three years, Ms. Nanayakkara did not do as well as or better than her offer in its totality. Rule 18(14) does not apply but I can take this offer into account in determining costs under Rule 24, along with any other offers that have been made (Rule 18(16)).

[26] This would have been an appropriate case to make a severable offer to settle, as most of the father’s proposals were ordered by the court.

[27] The court finds that the costs consequences set out in subrule 24(12) do not apply to the father’s offer to settle. His offer to settle and proposed consent were considered under sub-clause (iii) of subrule 24(14)(a).

Part Four – Amount of costs

[28] Subrule 24(14) reads as follows:

24(14) 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.

[29] This case was important to the parties. It was not complex or difficult.

[30] The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855.

[31] In considering the reasonableness of the parties’ conduct, the judge deciding costs should also address their mind to whether they have complied with court orders and the Rules during the proceeding. Rules 1(8)(a) and 1(8.1) provide that if a person fails to obey an order in a case or a related case or with the Rules, the court may deal with the failure by making an order for costs. See: M.A.B. v. M.G.C., 2023 ONSC 3748.

[32] The father acted reasonably. He made very reasonable proposals to settle the case. He followed all court orders. During his testimony, he said he agreed with the additional terms sought by the OCL.

[33] The mother did not act reasonably. She overheld the children. She breached court orders. She kept the Canada Child Benefit when the children were residing with the father. She did not file a trial affidavit in accordance with the trial direction of Justice Carolyn Jones. She did not make an offer to settle. She forced the matter to trial on the issue of joint decision-making responsibility when she had no reasonable prospect of success on this issue.

[34] The mother’s unreasonable behaviour significantly increased the cost of the matter for the father. He had to prepare the trial record, an affidavit brief, and a document brief. He had to prepare for a trial that was scheduled for 2 days, although it only took a half-day to complete.

[35] The rates of $400 per hour claimed by the father’s lawyer are reasonable for a 2007 call to the bar.

[36] The court found the time claimed by the father in his bill of costs to be somewhat high and disproportionate to the issues in dispute.

[37] The court considered the mother’s ability to pay costs. See: MacDonald v. Magel, 2003 ONCA 18880, 67 O.R. (3d) 181 (Ont. C.A.). However, difficult financial circumstances are a factor but are not always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787.

[38] 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.

[39] Those 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.

[40] Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably. See: G.W.S. v. C.S., 2018 ONCJ 378.

[41] In 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.

[42] The mother is employed as a nurse. The court finds she should have reasonably expected to pay the costs that will be ordered in this decision if she was unsuccessful.

[43] The court finds that the mother can afford to pay the costs that will be ordered, if a reasonable payment plan is ordered.

[44] The court orders as follows:
a) The mother shall pay the father’s costs fixed in the amount of $8,000, inclusive of fees, disbursements and HST.
b) The mother may pay the costs at $400 each month, starting on March 1, 2025. However, if she is more than 30 days late in making any payment, the entire amount of costs then owing shall immediately become due and payable.

Released: February 19, 2025

Justice Stanley B. Sherr