Court File and Parties
Date: December 17, 2019
Court File No.: D21347/18
Ontario Court of Justice
Between:
Olukemi Temilade Ajiboye
Dorothea Dadson, for the Applicant
Applicant
- and -
Olukayode Samuel Ajiboye
Pauline Malcom, for the Respondent
Respondent
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] On November 14, 2019 the court heard motions brought by the parties. The applicant (the mother) sought temporary orders for custody, specified access by the respondent (the father) and child support for the parties' two children (the children). The father sought orders for joint custody and specified unsupervised access to the children.
[2] The parties, at the outset of the hearing reached an agreement that the father would pay the mother temporary child support of $446.73 each month starting on November 1, 2019. They also agreed that the children's primary residence would be with the mother and that neither would discuss the court case or other adult matters with the children. They also set up a schedule for telephone access.
[3] The remaining issues argued on November 2019 were about temporary custody and access.
[4] The court gave oral reasons for decision at the conclusion of the hearing of the motions. The mother was granted temporary custody of the children. An order was made that the father would have supervised access to both children together on alternate weekends and gradually increasing day access to one of the children, with supervised exchanges on the other weekends.
[5] The mother was given the opportunity to make written costs submissions. She seeks costs of $4,746 from the father, to be enforced by the Family Responsibility Office. The father asks that no costs be ordered, or in the alternative that any costs ordered be minimal.
Part Two – Legal Considerations
2.1 General Principles
[6] 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) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).
[7] 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, paragraph 25.
[8] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[9] An 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.
2.2 Success and Offers to Settle
[10] Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ-Family Court). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ).
[11] Subrule 18(14) sets out the 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. It reads as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
18(14) 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:
If the offer relates to a motion, it is made at least one day before the motion date.
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.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[12] Even if subrule 18(14) does not apply, the court may take into account any written offer to settle, the date it was made and its terms when exercising its discretion over costs (subrule 18(16)).
[13] The technical requirements of subrule 18(4) must be met to attract the costs consequences in subrule 18(14). See: Reid v. Thomas, 2017 ONCJ 122; T.M.B.-P. v. B.P.G., 2018 ONCJ 517. In Clancy v. Hansman, 2013 ONCJ 702, this court found that an offer to settle did not meet the technical requirements of subrule 18(14) writing at paragraph 12:
A secondary deficiency in the offer to settle is that it was withdrawn 5 minutes before the commencement of the hearing. Paragraph 3 of subrule 18(14) requires that the offer must not have expired or been withdrawn before the hearing starts. This offer had expired before the hearing started. If counsel wish to put expiry clauses in their offers that will comply with the condition in paragraph 3 of subrule 18(14), the expiry date should be after the start of the hearing.
2.3 The Amount of Support
[14] Subrule 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.
[15] The 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.). However, a party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih pars. 7-13.
[16] 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.
Part Three – Does the Mother's Offer to Settle Attract the Costs Consequences Set Out in Subrule 18(14)?
[17] The mother made a non-severable offer to settle dated November 1, 2019.
[18] The mother's offer to settle closely mirrored the order made by the court.
[19] However, the mother's offer contained the provision that it would expire on November 14, 2019 at 9 a.m. While the motions had been scheduled to be heard at 9 a.m., the case was held down as the parties negotiated. By the time the hearing of the motions began, the mother's offer had expired.
[20] Paragraph 3 of subrule 18(14) is very clear that for the costs consequences in subrule 18(14) to apply the offer must not have expired before the hearing started.
[21] While the failure to meet the technical requirements of subrule 18(14) will not make much of a difference in the costs award in this case counsel should be careful to draft their offers to settle so that the expiry of the offer takes place after the hearing starts (for example, the father's offer expired 5 minutes after the start of the hearing of the motions).
Part Four – Success
[22] The court has considered the mother's offer to settle under subrule 18(16). The father should have accepted her offer.
[23] The father acted reasonably by making his own severable offers to settle, albeit only a few days before the court date. Portions of his offers included terms that were contained in the mother's offer to settle. While his offers were not more favourable to the father than the motions result, it did lead to a resolution of the support issue and ancillary parenting issues.
[24] The court finds that the mother was the successful party on the custody and parenting time issues and that she is entitled to her costs for these issues. The court will not award costs for the issues that were resolved prior to the hearing of the motions.
[25] That said, the dominant issues in these motions were custody and parenting time.
Part Five – Amount
[26] This case was important to the parties. It was not complex or difficult.
[27] The parties acted reasonably in the litigation. Both made offers to settle. They had discussions and resolved some of the issues.
[28] The rates claimed by the mother's lawyer are reasonable.
[29] The court agrees with the father's submission that some of the time claimed by the mother was excessive, as there was cutting and pasting from her application into her motion affidavits.
[30] The court considered that the father is of modest means. He also is paying for private access supervision until such time as access can start at the Toronto Supervised Access Centre. This factor can be addressed by permitting the father to pay the costs order in a reasonable monthly amount. The court will also defer payment so that the father can continue to pay for private access supervision in the short-term.
[31] Taking into consideration all of these factors the father shall pay the mother's costs fixed in the amount of $2,000, inclusive of fees, disbursements and HST. He may pay these costs at the rate of $125 each month, starting on March 1, 2020.
Part Six – Can the Court Order That Costs Be Enforced by the Director of the Family Responsibility Office?
[32] The mother seeks an order that the Director of the Family Responsibility Office enforce this costs order.
[33] Clause 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act sets out that a support order includes an order for the payment of legal fees or other expenses arising in relation to a claim for support or maintenance.
[34] The court has discretion to allocate what portion of the costs are attributable to support, particularly when there are multiple issues being litigated. See: Sordi v. Sordi, 2011 ONCA 665.
[35] However, in this case none of the costs ordered are attributable to the support issue. They are all attributable to the parenting issues. Accordingly, the court cannot order that the Director of the Family Responsibility Office enforce this costs order.
Released: December 17, 2019
Justice S.B. Sherr
