DATE: January 24, 2022 COURT FILE NO. D42007/21

ONTARIO COURT OF JUSTICE

B E T W E E N:

M.H.S.

APPLICANT

LINDA CHOI, for the APPLICANT

- and -

M.R.

RESPONDENT

GLENDA PERRY, for the RESPONDENT

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On December 21, 2021, the court released its endorsement regarding the parties’ motions for temporary parenting and support orders. See: M.H.S. v. M.R., 2021 ONCJ 665.

[2] The court gave the respondent (the mother) the opportunity to make written costs submissions. She seeks costs of $13,000. The applicant (the father) submits that the amount requested for costs by the mother is too high. He asks to be permitted to pay any costs ordered in instalments.

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, 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.

2.3 Other factors affecting costs orders

[9] 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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; 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 – Success

[15] Neither party made an offer to settle.

[16] The father sought a temporary order that the parties’ two children (the children) have their primary residence with him. In the alternative, he sought an order for equal-parenting time.

[17] The mother sought temporary orders for primary residence and sole decision-making responsibility for the children, supervised parenting time for the father and a restraining order against the father. She sought temporary orders that the father deposit his passports and the children’s passports with the court and that he not be permitted to remove the children from the City of Toronto. She sought police enforcement of the orders.

[18] The court made the orders sought by the mother. The only limitation placed on her claims was an order that she must live with the children in the same home as her mother. This was a protective condition for the children due to the mother having had a mental health breakdown between May and July of 2021.

[19] The mother was the successful party on the motions. The father did not rebut the presumption that she is entitled to her costs.

Part Four – Amount of costs and order

[20] This case was important for the parties. The case had difficulty and complexity as the mother had to gather evidence to answer serious allegations made by the father against her and to establish his family violence towards her and the children. The court found that the father’s violence towards the mother had been physical, emotional, psychological and financial.

[21] Both parties acted unreasonably by failing to make offers to settle.

[22] Otherwise, the mother acted reasonably.

[23] The father submits that he acted reasonably by bringing the case to court due to his concerns about the mother’s mental health. The court is not faulting him for that. However, the court found that the father acted in an appalling manner, as he:

a) Unjustifiably overheld the children after a scheduled visit.

b) Then took steps to try to exclude the mother from the children’s lives. He refused any in-person contact between them. He did not enroll the oldest child in school. He conceded at the hearing that he did this because he was afraid that the mother would pick the child up from school. As a result, the child did not go to school while in the father’s care. And, he excluded the mother as a contact for the younger child’s daycare. He instructed the daycare to give her no information. He put a line through “second parent” on the application.

[24] Further, the court found that the father acted unreasonably by failing to pay any child support to the mother and by unjustifiably applying for and collecting the Canada Child Benefits for the children that should have been going to the mother – placing her and the children in a precarious financial position.

[25] The father breached a court order to deposit his and the children’s passports with the court.

[26] The father also took an unrealistic position by seeking primary care of the children, or in the alternative, equal-parenting time.

[27] These unrealistic positions unnecessarily increased the mother’s costs.

[28] The court finds that the rates charged by the mother’s counsel ($475 per hour) are reasonable and proportionate for a 1992 call to the bar with her level of family law experience.

[29] 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.

[30] The court repeats its comments recently made at paragraph 38 in S.W.-S. v. R.S., 2022 ONCJ 11, as follows:

[38] Further, the father did not submit documentation showing his own fees and expenses to the court for comparison. An adverse inference is drawn against him for failing to do this. Providing this documentation is required pursuant to subrule 24 (12.2). This subrule reads as follows:

(12.2) A party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party’s own fees and expenses to the court and to the other party.

[31] The court accepts the mother’s submission that there were factors that increased the time required for these motions. These factors included gathering the necessary evidence to refute the father’s allegations against her and to support her allegations of family violence by the father. There were three different attendances for this motion. The first attendance was the without notice motion brought by the mother. The court found that this motion was justified. The second attendance was for the return of that motion, with notice, and the return of the father’s cross-motion. That appearance was adjourned for further material to be filed. However, that day the court heard submissions from the parties and made temporary orders pending the return of the motions. The third date was for the hearing of the motions. This involved focused cross-examinations of the parties and further submissions.

[32] The mother’s counsel had to spend additional time preparing her client for her cross-examination and preparing what turned out to be a highly effective cross-examination of the father.

[33] The mother states that her full recovery costs are $15,887 – she is claiming $13,000. The court finds that the time and rates claimed by the mother are reasonable.

[34] The father’s ability to earn income is in dispute. However, for the purpose of this analysis the court accepts that he has limited means to pay costs at this time. The court has taken this into account. The court notes that the father has now complied with its order to deposit passports with the court.

[35] 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 the costs that will be ordered.

[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 $10,000, inclusive of fees, disbursements and HST.

b) The father may pay the costs at $300 each month, starting on March 1, 2022.

Released: January 24, 2022 _____________________ Justice S.B. Sherr