DATE: June 11, 2021 COURT FILE NO. D30976/19
ONTARIO COURT OF JUSTICE
B E T W E E N:
NASHA DYLAN MARSHALL
OLIVIA OPREA, for the APPLICANT
APPLICANT
- and -
JASON RUSSELL
ACTING IN PERSON
RESPONDENT
HEARD: JUNE 10, 2021
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On June 10, 2021 the court gave oral reasons for decision after the trial of parenting and support issues concerning the parties’ two children.
[2] The court made a specified parenting time order between the respondent (the father) and the children and made orders that the applicant (the mother) could travel with the children outside of Canada for vacation purposes and obtain or renew government documentation for the children without the father’s consent.
[3] The court assessed the father’s annual income at $95,822 for support purposes and ordered him to pay the mother the Child Support Guidelines table amount of support of $1,420 each month, starting on April 1, 2019.
[4] The mother seeks her costs of $4,000 for the trial, with 50% of this amount to be treated as support and enforced by the Director of the Family Responsibility Office. The father asks that no costs be ordered.
Part Two – Legal considerations
[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, R.R.O. 1990, Reg. 114 (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, 2003 S.C.C. 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.
[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).
[10] To determine whether a party has been successful, the court should examine who was the successful party, based on the positions taken in the litigation. See: Lazare v. Heitner, 2018 ONSC 4861. The court may also take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ); Todor v. Todor, 2021 ONSC 3463.
[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] 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 ONSC 4709.
[13] 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.
[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] 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.
[16] 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.
Part Three – Entitlement to costs
[17] The mother made an offer to settle. The father did not.
[18] The mother wisely made her offer to settle severable.
[19] The mother’s offer to settle met all the preconditions required for the costs consequences set out in subrule 18 (14) to apply on the following issues:
a) The child support issues. The mother was willing to settle the support issues based on an assessment of the father’s annual income at $90,400. The court assessed his income at $95,822. The court ordered the start date for support that the mother requested.
b) The mother’s ability to obtain or renew government documentation for the children, including passports without the father’s consent. This was ordered.
c) The mother’s ability to travel with the children outside of Canada for vacation purposes without the father’s consent. This was ordered.
[20] The offer to settle was served on the father on May 25, 2021. The presumption that the mother is entitled to her costs to the date of the offer and full recovery costs from that date was not rebutted by the father.
[21] Only one paragraph of the mother’s offer to settle was not more favourable to the father than the trial result – although it was close. The court ordered the parenting time and parenting exchange terms sought by the mother. However, the mother also asked for a term that the father’s parenting time be in her discretion if he missed two visits. That term was not ordered.
[22] The mother took the same position on the parenting time and parenting exchange issues at trial. At trial, the father sought an order that he could see the children whenever he wanted to. He asked for an order that when he sought parenting time the mother would need to bring the children (ages 3 and 6) to his work at 10 p.m. on Fridays and then pick them up in Hamilton at his home on Sundays. He did not come close to achieving the result he sought.
[23] The mother was the successful party on the issues of parenting time and parenting exchanges. The presumption that she is entitled to costs on these issues was not rebutted.
Part Four – Amount of costs
[24] The issues in this case were important to the parties. They were not complex or difficult.
[25] The mother acted reasonably throughout the case. She made a very reasonable offer to settle.
[26] The father did not act reasonably. He did not comply with parenting terms ordered by the court during the case. He also did not comply with financial disclosure orders.
[27] The court finds that the time and rates claimed by the mother are very reasonable and proportionate. The mother restricted her claim to the trial step in the case. Her bill of costs is for $6,226. She is only claiming $4,000. This is a reasonable amount that the father should have expected to pay if he was unsuccessful.
[28] The father can afford to pay this costs order.
Part Five – Enforcement by the Family Responsibility Office
[29] The mother seeks an order that 50% of her costs be payable as support and enforced as an incident of support by the Director pursuant to clause 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996.
[30] 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.
[31] A flexible approach has been endorsed when the court is determining what proportion of costs should be allocated to the support issues. See: Shelley v. Shelley, 2019 ONSC 2830.
[32] The court finds that the allocation of costs to the support issue being sought by the mother is appropriate.
Part Six – Conclusion
[33] An order shall go as follows:
a) The father shall pay the mother’s costs of $4,000, inclusive of fees, disbursements and HST. This is payable in 30 days.
b) This costs award is a support order within the meaning of section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, and as such, it is enforceable by the Director of the Family Responsibility Office.
[34] Counsel for the mother shall take out this order.
Released: June 11, 2021
Justice S.B. Sherr