DATE : June 30, 2021 COURT FILE NO. D41138/21
ONTARIO COURT OF JUSTICE
B E T W E E N:
W.H.C.
Karen Ballantyne, for the Applicant
Applicant
- and -
W.C.M.C.
Glenda Perry, for the Respondent
Respondent
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On June 1, 2021 the court released its endorsement on the parties’ motions for temporary parenting and support orders. See: W.H.C. v. W.C.M.C., 2021 ONCJ 308.
[2] The court gave the parties the opportunity to make written costs submissions. The respondent (the mother) seeks costs of $7,000. The applicant (the father) asks that no costs be ordered. If costs are ordered, the father seeks an order that they be paid at $50 each month.
Part Two – Legal Considerations
2.1 General Principles
[3] 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).
[4] 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.
[5] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[6] 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
[7] 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).
[8] 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.
[9] Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[10] 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.
[11] 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 ONSC 5400; Mondino v. Mondino, 2014 ONSC 1102.
2.3 Other Factors Affecting Costs Orders
[12] 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.
[13] 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.). Difficult financial circumstances are a factor but not are always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787. 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.
[14] 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.
[15] The rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v Slongo, 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: Jackson v. Mayerle, 2016 ONSC 1556.
[16] 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.
[17] A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Smith Estate v. Rotstein, 2011 ONCA 491 (Ont CA); Durbin v. Medina, 2012 ONSC 640 (SCJ); Scipione v. Del Sordo, 2015 ONSC 5982 (SCJ); Zhang v. Guo, 2019 ONSC 5767 (Div Ct); Laidman v. Pasalic and Laidman, 2020 ONSC 7068.
Part Three – Analysis and Order
[18] Neither party made an offer to settle.
[19] The father sought temporary unsupervised parenting time with the parties’ two-year-old son (the child), starting with frequent day parenting time and quickly moving to equal-parenting time. The mother had not permitted the father to have in-person parenting time with the child after the parties separated in January 2021.
[20] The mother sought temporary parenting orders for sole decision-making responsibility and for the father’s parenting time to be supervised by a professional parenting time supervisor, at his expense. She sought an order that the father deliver the child’s government documentation to her. She also sought an order, pursuant to section 28 of the Children’s Law Reform Act, that the father not communicate with her or contact her.
[21] The mother sought an order for temporary child support for the child. She also claimed that the father had formed a settled intention to act as a parent for her 5-year-old daughter (K.) and sought an order for temporary child support for K.
[22] The mother was completely successful on the following temporary issues:
a) Decision-making responsibility for the child. b) Obtaining child support for K. c) Obtaining a non-communication or contact order pursuant to section 28 of the Children’s Law Reform Act. d) Obtaining government documentation for the child.
[23] The issue of parenting time was the dominant issue on the motions.
[24] There was divided success on the parenting time issue, although the mother was more successful than the father. The court accepted the mother’s concerns about the father and required supervision of his parenting time. The court ordered day parenting time two days each week, with the length of the visits to be increased after nine visits. This was more parenting time than proposed by the mother, but far less than the parenting time sought by the father.
[25] The father was successful in having his parenting time supervised by his family members. The mother had sought an order that the father’s parenting time be supervised by a professional parenting time supervisor.
[26] This case was important for the parties. The case had some difficulty and complexity as the mother had to gather evidence to support her serious allegations against the father.
[27] Both parties acted unreasonably by failing to make offers to settle.
[28] The mother alleges that the father acted unreasonably by not conceding his child support obligation for K. The court disagrees. Claims for support of a step-child can be complicated. Being unsuccessful does not equate necessarily to being unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302.
[29] The court accepts the father’s submission that he had to move to court to establish his parenting time. However, once he started the case, the father was still obligated to take reasonable positions if he wanted to avoid cost consequences. The father should have conceded the issues respecting decision-making responsibility, government documentation and non-contact or communication with the mother.
[30] The father also took an unrealistic position by seeking an aggressive move to equal-parenting time for the child.
[31] These unrealistic positions unnecessarily increased the mother’s costs.
[32] The father claims that the amount of costs sought by the mother is excessive. This submission might have had more impact if the father had submitted his own bill of costs for comparison. He did not do this.
[33] The court accepts the mother’s submissions that there were factors that increased the time required for these motions. These factors included the mother’s need for interpretation, the need to have documents translated to English and requiring affidavits from foreign witnesses.
[34] The mother states that her full recovery costs are $8,280 – she is claiming $7,000. The court finds that the time and rates claimed by the mother are reasonable. It further finds that the disbursements claimed by the mother are reasonable.
[35] The father’s actual income and means remain in dispute. However, for the purpose of this analysis the court accepts that he has limited means. The court will address this factor by ordering that these costs may be paid over a reasonable period of time. If a court subsequently finds that the father has additional means or is earning more income than he is claiming, it can order a more aggressive payment of these costs.
[36] An order will go on the following terms:
a) The father shall pay the mother’s costs of these motions in the amount of $4,800, inclusive of fees, disbursements and HST. b) The father may pay the costs at $150 each month, starting on August 1, 2021.
Released: June 30, 2021
Justice S.B. Sherr