Court File and Parties

Date: February 2, 2022 Court File No.: D31200/19

ONTARIO COURT OF JUSTICE

B E T W E E N:

LINA MARIE WHITE, Applicant JOSEPH ROGER RICHARD FORGET, for the Applicant

- and -

MARK WHITE, Respondent G. CHARLES S. MORRISON, for the Respondent

HEARD: IN CHAMBERS

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On January 4, 2022, the court released its endorsement regarding the respondent’s (the father’s) motion for temporary parenting and support orders concerning the parties’ two children and the applicant’s (the mother’s) motion to find the father in contempt of the existing court order. See: White v. White, 2022 ONCJ 2.

[2] The court gave the parties the opportunity to make written costs submissions. The father seeks costs of $5,000. The mother asks that no costs be ordered.

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 awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[5] 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

[6] 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).

[7] 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. This assessment includes the positions taken in the pleadings, and the specific relief sought at the hearing, if different. See: Kyriacou v. Zikos, 2022 ONSC 401. 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; Kyriacou v. Zikos, supra.

[8] Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.

[9] 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.

[10] 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 Other factors affecting costs orders

[11] 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.

[12] 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.).

[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.

Part Three – Analysis and order

[14] The parties both made offers to settle. The parties acknowledged that their offers were not more favourable than the motion result for the other party.

[15] Both parties, by cherry-picking terms in their offers to settle, submitted that they were successful on specific issues. However, neither of the offers to settle were severable. Both offers contained terms that the other party would have been ill-advised to accept. The reasonable portions of the offers could not have been accepted without also agreeing to the untenable portions. The offers to settle were not helpful in determining who was successful on the motions.

[16] The positions that the parties took on the motions is a much better measure to determine who was successful.

[17] The parties agree that there was divided success on the motions. The father feels that he was much more successful than the mother. The mother feels that there was equal success.

[18] The dominant issues on the motions were the residency of the two children and child support. The secondary issues concerned contempt and jurisdiction.

[19] The father was successful in obtaining an order that A.S. have her primary residence with him.

[20] The mother was successful in resisting the father’s motion for L.W. to have her temporary primary residence with him. The court did not change the existing shared residence schedule for L.W. While the mother is asking that L.W. have her primary residence with her in this case (and proposed this in her offer to settle) she did not seek this relief on these motions.

[21] The father was required to bring his motion for temporary support as the mother had refused to pay him any support for A.S., who had been living with him since April 2020. He was successful in obtaining past and ongoing support for A.S., but far less than the amounts he sought. He did not obtain ongoing child support for L.W.

[22] The father sought past child support of $17,977.50 and was awarded $6,552. The mother had taken the position that no past child support should be paid. The father sought ongoing child support of $1,227 each month for both children. The mother offered no child support. The court ordered ongoing child support of $284 each month for A.S.

[23] The mother’s motion for contempt was dismissed. The court found that the motion was ill-advised. The father was completely successful on this issue.

[24] The mother also argued that the court had no jurisdiction to hear the matter as the father had proceeded by application and not by motion to change. This argument had no merit and was rejected.

[25] Overall, the court finds that the father was more successful on the motions than the mother. The mother did not rebut the presumption that the father is entitled to his costs.

[26] The case was important to the parties. It was not complex or difficult.

[27] The father acted reasonably on the motions.

[28] The mother’s motion for contempt was unreasonable, as was her decision not to pay any child support for A.S.

[29] The hourly rates claimed by the father’s counsel ($400 per hour) are very reasonable for a 1980 call to the bar.

[30] The father claimed that his fees, disbursements and HST are $16,982. The time claimed appears to be high, however, the father has reasonably restricted his costs claim to $5,000.

[31] The mother can afford the costs that will be ordered by the court.

[32] Balancing all of these considerations an order will go that the mother shall pay the father’s costs of these motions, fixed in the amount of $3,500, inclusive of fees, disbursements and HST. Costs are due and payable in 45 days.

Released: February 2, 2022 _____________________ Justice S.B. Sherr