Court File and Parties

Date: November 24, 2020

Court File No.: D31309/19

Ontario Court of Justice

Between:

A.M. Acting in Person APPLICANT

- and -

S.D. RESPONDENT

Counsel: Aglaia Lowo, for the Respondent

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

Part One – Introduction

[1] On October 26, 2020, the court released its reasons for decision arising out of a one-day trial about the parenting and child support arrangements for the parties' four-year-old child (the child), and the respondent's request for a restraining order against the applicant. See: A.M. v. S.D., 2020 ONCJ 479.

[2] The court granted the respondent custody of the child and the incidents of custody sought by her. It made an order that the applicant's parenting time with the child be supervised. The court granted the restraining order sought by the respondent. It also ordered the applicant to pay the respondent child support of $227 each month.

[3] The court provided the parties with the opportunity to make written costs submissions.

[4] The respondent seeks costs of $2,500. The applicant did not make any submissions.

Part Two – Legal Considerations

2.1 General Principles

[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) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

[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, paragraph 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(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

[9] 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).

[10] 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 hearing result of the person making the offer.

[11] If an offer to settle is severable, the costs consequences set out in subrule 18(14) can be applied to those parts of the offer that meet the criteria set out in the subrule. See: Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ); Scipione v. Scipione, 2015 ONSC 5982 (SCJ).

[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)).

2.3 Other Factors Affecting the Amount of Support

[13] 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.

[14] 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.

[15] 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.

[16] Family law litigants are responsible for and accountable for the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.

Part Three – Success

[17] The respondent was clearly the successful party at trial. Both parties sought sole custody of the child. The court granted the respondent the custody orders she sought. The respondent was successful in obtaining an order for the supervision of the applicant's parenting time with the child. She also obtained the restraining order she claimed against him. She came close to obtaining the level of child support that she sought.

[18] The applicant did not rebut the presumption that the respondent is entitled to her costs.

[19] The respondent submitted that she made a severable offer to settle that was more favourable to the applicant on all issues but child support. She did not attach the offer to her submissions. Ordinarily, the court would have asked the respondent to produce the offer, but her request for costs is so modest, this will not be necessary – the court does not have to consider subrule 18(14) to reach the result that the respondent seeks.

Part Four – Amount of Costs

[20] This trial was important to the parties. It was not complex or difficult.

[21] The respondent acted reasonably in this case.

[22] The applicant did not act reasonably. He refused to accept the validity of past court orders and took the unreasonable position of seeking sole custody of the child, when he had chosen not to see the child for the past 15 months.

[23] The time and rates claimed by the respondent are very reasonable and proportionate. She is seeking partial recovery costs.

[24] The court considered that the applicant is of modest means. However, the court's sympathy for him is limited because of his unreasonable behaviour.

[25] Taking into account all of these factors the applicant shall pay the respondent's costs fixed in the amount of $2,500, inclusive of fees, disbursements and HST.

[26] The respondent asked that the costs be payable to her counsel's law firm in trust. The court prefers not to be involved in retainer arrangements. See: John v. Vincente, 2016 ONCJ 78. Counsel can always have the respondent assign this order.

Released: November 24, 2020

Justice S.B. Sherr