Court File and Parties
Date: May 6, 2020
Court File No.: D30948/19
Ontario Court of Justice
Between:
Ashley Winiarz
Pamila Bhardwaj, for the Applicant
Applicant
- and -
Angus Anderson
Sarah E. Mott-Trille, for the Respondent
Respondent
Heard: May 1, 2020
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] This is the costs decision on motions brought by the parties regarding their four-year-old daughter (the child) that arose from the respondent's (the father's) fear of returning the child to the applicant (the mother) during the COVID-19 pandemic (the pandemic).
[2] The mother sought to enforce the consent final custody order of this court dated October 9, 2019 (the existing order) that granted her sole custody of the child and reasonable access to the father. She asked for the immediate return of the child and police enforcement of the order. She also requested a temporary order, changing the existing order, so that the father would only have virtual access to the child during the pandemic.
[3] The father also sought a temporary change to the existing order. He asked for temporary custody of the child and an order that the mother only have virtual access to the child during the pandemic.
[4] When the motions were heard the parties modified their positions regarding the other party's parenting time with the child. The mother submitted that the father should have parenting time on the first three weekends of each month (with just two weekends in May) from Friday at 3 p.m. until Sunday at 6 p.m., in addition to daily virtual access. The father submitted that in addition to her daily virtual access, the mother should have parenting time from noon to 4 p.m., five days each week.
[5] The court heard the motions and delivered oral reasons for decision on May 1, 2020. The court made the following orders:
a) The father shall immediately return the child to the mother.
b) The father's motion to change the existing custody order on a temporary basis is dismissed.
c) The October 9, 2019 access order is changed on a temporary basis on the following terms:
i) The father shall have parenting time with the child on three out of every four weekends from Fridays at 10:00 a.m. until Mondays at 6 p.m., while the child is not in school.
ii) Once school begins, the father's weekend parenting time shall be from Fridays at 6 p.m. until Sundays at 6 p.m., extending until Mondays at 6 p.m., if the weekend falls on a long holiday.
iii) In addition, during the week prior to the father not having weekend access, he shall have the child with him from Wednesday at 6 p.m. until Thursday at 6 p.m.
iv) The child shall have daily virtual access to the parent who she is not with during the pandemic.
[6] The court also made orders respecting access exchanges and that required the parties to follow government health directions regarding the pandemic.
[7] The mother seeks her costs of $3,500 for the motions. The father asks that no costs be ordered.
Part Two – Legal Considerations
2.1 General Principles
[8] 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).
[9] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[10] 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
[11] 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).
[12] Subrule 24(6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[13] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.
[14] Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (SCJ); Mondino v. Mondino, 2014 ONSC 1102.
2.3 Offers to Settle
[15] 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.
[16] 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)).
[17] The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842 (SCJ).
[18] The technical requirements of subrule 18(4) must be met to attract the costs consequences in subrule 18(14). See: Clancy v. Hansman, 2013 ONCJ 702; T.M.B.-P. v. B.P.G., 2018 ONCJ 517.
2.4 Other Factors Affecting Costs Orders
[19] 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.
[20] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 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.
[21] 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 - Analysis
3.1 Offers to Settle and Success
[22] The mother made an offer to settle dated April 30, 2020 that was served on the father that day at 6:20 p.m. Since it was served after 4 p.m., pursuant to clause 6(11)(b) of the rules, this meant that the effective day of service of the offer to settle was May 1, 2020. Accordingly, the offer did not comply with paragraph 1 of subrule 18(14), as it was not delivered at least one day before the motion date.
[23] The mother's offer to settle was also not more favourable to the father than the motions result. The court ordered that the father's parenting time start on Fridays at 10:00 a.m., as opposed to the 3 p.m. start proposed by the mother. The weekend parenting time ordered extends until Monday at 6 p.m. during the pandemic. The mother's offer was to end it at 6 p.m. on Sunday. Lastly, the court ordered an overnight in the week prior to the weekend the father did not have parenting time. The mother's offer did not include this.
[24] The father delivered an offer to settle on the morning of the motion, so paragraph 1 of subrule 18(14) was not complied with. He did not make a proposal for his parenting time if he was not granted temporary custody of the child. His proposal for the mother's parenting time was the same as he submitted at the hearing of the motions – daily virtual access plus 5 days each week for 4 hours. His offer to settle was not more favourable to the mother than the motions result.
[25] The court considered the offers to settle under subrule 18(16).
[26] The mother was the successful party on the custody issue. The father's motion to change custody was dismissed and he was ordered to return the child to the mother the same day. The court chose not to make a police enforcement order but cautioned the father about the consequences that could follow if he did not return the child to the mother.
[27] The custody issue was the dominant issue on the motions.
[28] Success on the parenting time issue for the father must be examined in two stages. In the first stage (up until the evening before the motion was heard), the mother sought to limit the father to virtual access. Except for the argument of the motion, most of the legal work was done during this stage. The father was granted extensive parenting time with the child. He was the successful party at this stage.
[29] In the second stage (being the day of the motion), there was divided success on the parenting time issue, with the mother being slightly more successful. The court ordered more parenting time than the mother offered, but her offer to settle was reasonable. The father did not make an offer about this issue.
[30] Overall, there was divided success on the motions, with the mother being the more successful party. The father did not rebut the presumption that the mother should be entitled to costs.
3.2 Amount of Costs
[31] This case was important for the parties. The COVID-19 pandemic added additional layers of complexity as it was more challenging for counsel to gather relevant evidence and have it properly presented to the court. The mother had to spend additional time obtaining affidavits from two witnesses to rebut allegations made about her by the father.
[32] The mother provided a bill of costs for over $6,500 but submitted that she wasn't seeking that amount. The time and rates claimed by the mother were reasonable and proportionate.
[33] The court finds that the parties acted reasonably. The pandemic has created many challenges for parents who worry about the safety of their families. In this case, the parties had orally agreed that the child would stay with the father during the pandemic. The parties then disagreed about whether this should continue. The mother was concerned that the father's home was no longer safe. The father was concerned that the mother's home was not safe and denied her face-to-face contact with the child. The father applied for legal aid to come to court to change the existing order, but the mother brought her motion first.
[34] Just because a party is unsuccessful doesn't mean that they are unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302.
[35] The parties are commended for having changed their positions regarding the other's parenting time as more evidence became available, albeit just before the motions were heard.
[36] The father submitted that a costs order should not be made as it would only escalate the conflict between the parties. This is not a compelling argument and is inconsistent with the purposes behind costs orders set out in paragraph 8 above.
[37] The court also considered the economic circumstances of the father. He is of modest means and supports himself on a disability income. The court will permit the father to pay the costs order over a reasonable time frame.
Part Four – Conclusion
[38] An order shall go as follows:
a) The father shall pay the mother's costs of the motions fixed at $1,800.
b) Starting on June 1, 2020, the father may pay the costs to the mother at the rate of $100 each month. However, if he is more than 30 days late in making any costs payment, the entire amount of costs then owing shall immediately become due and payable.
c) This costs order is subject to any subsequent order of the court.
[39] The court thanks counsel for their excellent presentation of these motions in difficult circumstances.
Released: May 6, 2020
Justice S.B. Sherr
