DATE: October 13, 2023 COURT FILE NO. D42825/22 ONTARIO COURT OF JUSTICE
B E T W E E N:
JEANNE LEITA AMBIA
APPLICANT
THEODORA J. OPREA, for the APPLICANT
- and –
TRENT DEGENSTEIN
RESPONDENT
ACTING IN PERSON
HEARD: OCTOBER 10, 2023
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On October 10, 2023, the court gave oral reasons dismissing the respondent’s motion to find the applicant in contempt of the court’s final parenting order dated March 10, 2023.
[2] The applicant seeks her full recovery costs in the amount of $4,520.
[3] The applicant also seeks an order that the respondent must first obtain leave of the court prior to bringing any further court proceedings.
[4] The respondent opposes the applicant’s requests for costs and to require him to obtain leave prior to bringing any future court proceedings. If costs are ordered, he asks that the court take into consideration that he has very difficult financial circumstances.
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:
a) to partially indemnify successful litigants; b) to encourage settlement; c) to discourage and sanction inappropriate behaviour by litigants and; d) 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, 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.
2.2 Success
[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).
2.3 Offers to settle
[10] Subrule 18 (4) sets out that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any.
[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.
2.2 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: b) each party’s behaviour, c) the time spent by each party, d) any written offers to settle including offers that do not meet the requirements of rule 18, e) any legal fees, including the number of lawyers and their rates, f) any expert witness fees, including the number of experts and their rates, g) any other expenses properly paid or payable; and h) 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.
[14] 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.
[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] Even where the "full recovery" provisions of the Rules are triggered – either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith – quantification of costs still requires an overall sense of reasonableness and fairness. See: Goryn v. Neisner 2015 ONCJ 318.
[17] 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
[18] The applicant was the successful party. The court found that the respondent’s contempt motion was ill-advised and dismissed it.
[19] The respondent did not rebut the presumption that the applicant is entitled to costs.
[20] The applicant made an offer to settle. She offered not to seek costs if the respondent withdrew his motion by October 3, 2022.
[21] The applicant’s offer to settle complied with all the technical requirements of subrule 18 (14). It was as favourable, or more favourable to the respondent than the result on the motion.
[22] Pursuant to subrule 18 (14), the applicant is entitled to her costs to the date of her offer and her full recovery costs after the date of the order. There is no basis to order otherwise.
[23] This case was important to the parties. It was not complex or difficult.
[24] The applicant acted reasonably. The respondent did not act reasonably. His motion was an overreaction to perceived minor breaches of the final parenting order. He should have accepted the applicant’s offer to settle. He did not make any offer to settle of his own.
[25] The applicant’s counsel’s rates of $400 per hour are reasonable for a 2014 call to the bar.
[26] The rates and time claimed by the applicant are reasonable and proportionate.
[27] The applicant’s counsel spent 5.7 hours of time prior to the offer to settle and 4.3 hours after it.
[28] The court will apply the costs consequences set out in subrule 18 (14). The respondent’s unreasonable behaviour informs the court that a high level of costs should be ordered for the time prior to the applicant’s offer to settle. However, the behaviour does not rise to the level of requiring the respondent to pay full recovery costs.
[29] The court finds that the respondent has the ability to pay the costs that will be ordered.
[30] The respondent should also have reasonably expected to pay this level of costs if he was unsuccessful. He claimed to the court that he is earning $110,000 each year and that he is a homeowner. The financial challenges he described to the court do not warrant a reduction in the amount of costs that will be ordered.
Part Four – Request that respondent require leave prior to starting any future court proceedings
[31] The applicant seeks an order that the respondent must obtain leave of the court prior to starting any further court proceeding.
[32] Subrule 14 (21) provides the court with authority to require a party to first obtain permission before making any other motions in the case. It reads as follows:
No motions without court's permission
14 (21) If a party tries to delay the case or add to its costs or in any other way to abuse the court's process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court's permission.
[33] The court has some sympathy for the applicant’s request. This was a meritless motion. The respondent unnecessarily put the applicant to the financial cost and emotional stress of responding to the motion. However, the court will not make this order for the following reasons:
a) Courts should exercise this authority cautiously when dealing with parenting issues. See: Rodriguez v. Vella, 2022 ONCA 870. b) This one unsuccessful motion does not constitute numerous motions as set out in the subrule. See: Sajid v. Mahmood, 2023 ONCJ 120. c) A significant costs order is a sufficient remedy to address the respondent’s unreasonable behaviour.
Part Five – Order
[34] An order shall go on the following terms:
a) The respondent shall pay the applicant’s costs fixed at $4,000, inclusive of fees, disbursements and HST. The costs are due and payable in 30 days. b) The applicant’s request to require the respondent to obtain leave of the court prior to bringing any future court proceedings is dismissed.
Released: October 13, 2023
Justice Stanley B. Sherr