Court File and Parties
DATE: February 10, 2023 COURT FILE NO. D42613/22 ONTARIO COURT OF JUSTICE
B E T W E E N:
TOSHA FENTON APPLICANT
ARI RUBIN, for the APPLICANT
- and -
RUBEN CHARLES RESPONDENT
ACTING IN PERSON
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
Endorsement
Part One – Introduction
[1] On December 21, 2022, the court held a trial regarding the respondent’s (the father’s) child support obligations for the parties’ six-year-old child (the child).
[2] The court gave oral reasons for decision the same day. The court imputed the father’s annual income at $60,000 and ordered him to pay child support to the applicant (the mother) of $556 each month, retroactive to June 1, 2019.
[3] Prior to the start of the trial, the court heard a motion by the father to set aside final parenting orders that had been made on a default basis on October 21, 2022. The court did not set aside its orders regarding decision-making responsibility and incidents of decision-making responsibility. However, it endorsed that it was prepared to set aside its order regarding the father’s parenting time and permit him to file an Answer/Claim, limited to that issue, if he paid the mother $1,500 towards her costs of this case by January 24, 2023.
[4] The father paid the required $1,500. On February 7, 2023, the court set aside its final order regarding parenting time, made it a temporary parenting time order, and scheduled a case conference limited to this issue.
[5] The mother was given permission to make written submissions for her costs incurred to date. She seeks costs of $11,231.74.
[6] The father also made written costs submissions. He essentially tried to re-argue the support case. He submits that no costs should be ordered.
Part Two – Brief background
[7] The mother issued her application for parenting and child support orders on May 3, 2022.
[8] The father did not file an Answer/Claim. He did not attend at First Appearance Court on July 6, 2022, or on August 11, 2022.
[9] The mother filed a Form 23C affidavit for an uncontested trial. The father did not appear at court on October 21, 2022. The court found the father in default. It made final parenting orders, including, granting the mother decision-making responsibility for the child and ordering reasonable parenting time for the father on reasonable notice to the mother.
[10] The court also made a temporary child support order requiring the father to pay the mother $556 each month. The court adjourned the final hearing on the support issues for the mother to serve and file supplementary evidence regarding her request to impute income to the father and to address the retroactive support factors set out by the Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24. The court ordered that this supplementary evidence be served on the father.
[11] The father attended court on the return date of November 30, 2022 and was assisted by duty counsel. He was given rights of participation at the support trial, despite being in default, and was permitted to file financial evidence. He was provided with a detailed checklist of financial information that the court expected to receive from him. The father stated at this appearance that he wanted to set aside the default parenting orders. He was directed to serve and file a motion for that relief.
[12] The father brought his motion to set aside the parenting orders and that motion was heard and decided prior to the child support trial. As part of its decision the court permitted the father to fully participate in the child support trial and cross-examine the mother. The father was assisted by duty counsel at trial.
Part Three – General costs principles
[13] 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).
[14] 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.
[15] Costs awards are discretionary. Two important principles in exercising this discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[16] 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.
Part Four – Offers to settle and subrule 18 (14)
4.1 Legal considerations
[17] 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.
[18] 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.
[19] Even if subrule 18 (14) does not apply, the court may take into account any written offer to settle, the date it was made and its terms when exercising its discretion over costs (subrule 18 (16)) or, in assessing the reasonableness of a party under sub-clause (iii) of subrule 24 (12) (a).
[20] 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 4600.
[21] 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.
[22] Close is not good enough to attract the costs consequences of 18 (14). The offer must be as good as or more favourable than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482.
4.2 Analysis
[23] The mother served and filed an offer to settle on the father on June 7, 2022. This offer was not withdrawn prior to the trial.
[24] The offer was as favourable or was more favourable to the father than the trial result on both the decision-making responsibility and support issues.
[25] The court finds that the costs consequences set out in subrule 18 (14) should apply. There is no basis to order otherwise. This means that the mother shall receive her costs until the date of the offer, and her full recovery costs from the date of the offer.
Part Five – Amount of costs and order
[27] An award of full recovery costs does not necessarily mean that the applicant will receive the full amount of costs claimed. The claim must still be reasonable and proportionate. It must also reflect, to some extent, the reasonable expectations of the paying party. See: Tintinalli v. Tutolo, 2022 ONSC 6276.
[28] In Jackson v. Mayerle, 2016 ONSC 1556 the court wrote at paragraph 91:
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. Goryn v. Neisner, 2015 ONCJ 318. The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v Slongo, 2015 ONSC 3327. The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M.(C.A.) v. M.(D.), [2003] O.J. No. 3707(supra); Scipione v Scipione, 2015 ONSC 5982, [2015] O.J. No. 5130 (supra).
[29] Subrule 24 (12) sets out factors for the court to consider in determining the reasonableness and proportionality of a costs claim. It 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.
[30] 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.
[31] 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.).
[32] However, the 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. 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.
[33] This case was important to the parties.
[34] The case was not complex. It was made more difficult due to the father’s failure to provide timely or complete financial disclosure.
[35] The father did not comply with the timelines to file his financial evidence ordered on November 30, 2022. Instead, he came to the court on the day of trial with stacks of unorganized documents. The case was held down to give the mother time to process it and prepare questions.
[36] The mother acted reasonably in this case. The father acted unreasonably. He delayed the disposition of the case by failing to attend at court three times and failing to provide timely or complete financial disclosure.
[37] The court reviewed the mother’s bill of costs. The court finds that the rates claimed by the mother are high, particularly the rates claimed for the articling student and law clerks employed by her counsel. For instance, the mother claimed between $175-$225 per hour for time spent by the law clerks. In Ahluwalia v. Ahluwalia, 2022 ONSC 2169, the court found that $125 per hour was a reasonable amount to claim for a law clerk.
[38] The time claimed by the mother was generally reasonable. However, some of the time claimed by her was attributable to her initial material being inadequate to support her retroactive support claim. She will not receive costs for the additional time spent to correct this.
[39] The disbursements claimed by the mother for process servers are reasonable.
[40] The court has considered that the father had partial success on his pre-trial motion and has been given permission to file an Answer/Claim on the parenting time issue.
[41] The court will also credit the father with the $1,500 costs he paid as a term to set aside the default finding on the parenting time issue.
[42] The father claims that he has not have the ability to pay costs. He says that he has difficult financial circumstances and that he has two other children to support.
[43] The court will take into account the father’s financial circumstances by permitting him to pay this costs order over a reasonable time period. However, if he is more than 30 days late in making any costs or support payment accruing after March 1, 2023, then the entire amount of costs still owing shall become immediately due and payable.
[44] Balancing all of these factors, the court finds that it is reasonable and proportionate to order the father to pay the mother’s costs incurred to date of $8,000. The court finds that the father should have reasonably expected to pay this amount of costs if he was unsuccessful.
Part Six – Conclusion
[45] An order shall go on the following terms:
a) The father shall pay the mother’s costs incurred to date in the amount of $8,000, inclusive of fees, disbursements and HST.
b) The father shall be credited for costs paid of $1,500, leaving a balance owing to the mother of $6,500.
c) The father may pay these costs at $250 each month, starting on March 1, 2023. However, if he is more than 30 days late in making any costs or support payment accruing after March 1, 2023, then the entire amount of costs still owing shall become immediately due and payable.
Released: February 10, 2023
Justice Stanley B. Sherr
