Court File and Parties

DATE: February 17, 2023 COURT FILE NO.: D44575/08 ONTARIO COURT OF JUSTICE

B E T W E E N:

DOLLEN KERR, APPLICANT ZONELLE WEBB, for the APPLICANT

• and -

DARI MOUSSA, RESPONDENT ROMA S. MUNGOL, for the RESPONDENT

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On January 3, 2023, the court released its reasons for decision resulting from a one-day trial of the respondent’s (the father’s) motion to change the child support terms contained in the November 19, 2008 order of Justice Carole Curtis. See: Kerr v. Moussa, 2023 ONCJ 1.

[2] Justice Curtis’ order required the father to pay the applicant (the mother) $444 each month for the support of the parties’ two children.

[3] The court changed the order of Justice Curtis to provide that the father pay child support in the amount of $263 each month, starting on January 1, 2021. The court permitted the father to pay support arrears at $50 each month.

[4] The court permitted the parties to make written costs submissions. The mother seeks her full recovery costs of $14,435.75. The father claims that these costs are excessive. He asks that any costs be paid after he pays his support arrears.

Part Two – General costs 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:

(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).

[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.

[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).

[10] 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.

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

[12] 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.

[13] 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.

Part Three – Determination of success

[14] 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:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. 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.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[15] 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).

[16] Only the father made an offer to settle pursuant to rule 18. He proposed suspending support until he earned a minimum wage income, or alternatively suspending support until he obtained full-time employment. He also asked for his support arrears to be reduced to zero, or an amount the court deemed just.

[17] The trial result was much more favourable to the mother than the father’s offer.

[18] The mother was the more successful party overall, based on the positions taken at trial.

[19] The father sought a reduction of the arrears of $64,806.88 (as of November 1, 2022) to $3,240. The mother asked that the arrears not be reduced. The court only reduced the arrears by $3,620. This was the dominant issue at trial.

[20] The father sought to reduce ongoing support to $135 each month. The mother sought to maintain the support payments at $444 each month. The court reduced support to $263 each month. There was divided success on this issue.

[21] The father was successful in obtaining an order that his arrears be paid at $50 each month. The mother sought payment at $200 each month. However, this accommodation to the father is conditional on his maintaining all support payments in good standing. The father was more successful on this issue.

[22] The father did not rebut the presumption that the mother is entitled to costs.

Part Four – Amount of costs

[23] 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.

[24] 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.

[25] This case was important to the parties. It was not complex or difficult.

[26] The mother alleged that the father acted in bad faith. There was no evidence to support that contention.

[27] Both parties acted reasonably by agreeing to a focused trial and presenting their case in a proportional manner. Both counsel are commended for this.

[28] The mother acted unreasonably by failing to make a formal offer to settle. Otherwise, she acted reasonably.

[29] The father acted unreasonably by failing to pay any child support for many years.

[30] The mother alleges that the father acted unreasonably by taking unreasonable positions at trial. The court disagrees. It was reasonable for the father to bring the case to court. He obtained a reduction of arrears and of ongoing support. Being unsuccessful does not necessarily equate to being unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302; W.H.C. v. W.C.M.C., 2021 ONCJ 363.

[31] The mother claimed time spent for a case conference where costs were not ordered or reserved.

[32] Subrule 24 (11) provides that the failure of the court to order costs in relation to a step in a case does not prevent it from awarding costs in relation to the step at a later stage in the case.

[33] However, courts continue to be cautious about awarding costs at the trial stage where costs were not awarded at earlier steps in a case. See: Baezner v. Brunnenmeir, 2018 ONCJ 956; Nabwangu v. Williams, 2019 ONCJ 171.

[34] In Laidman v. Pasalic and Laidman, 2020 ONSC 7068 the court set out that the presumption remains that costs should be determined at each stage, and there are good reasons for this. Parties should have an ongoing awareness of the cost consequences of litigation decisions they make. Reserving costs may impede final resolution by needlessly inflating and complicating the list of future issues still to be dealt with. A judge who has just completed a step in a case will usually be in the best position to evaluate all of the relevant Rule 18 and 24 considerations. Reserving costs to a future event – often to a different judge – can result in later confusion and controversy about what really happened at the earlier step.

[35] In Berge v. Soerensen, 2020 ONCJ 265 Justice Roselyn Zisman set out the following circumstances where costs of a prior step should be awarded:

a) Costs have been reserved to the trial judge. b) When, considering subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over the step or, c) In exceptional circumstances.

[36] None of the criteria set out by Justice Zisman apply here. The court will not order costs associated with the case conference.

[37] This does not preclude the court from awarding costs accrued from activity not specifically related to a step in the case. Activity not requiring judicial intervention is often better dealt with at the end of the case and not by the motions judge. See: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98. The court will award costs for this activity which included the drafting and review of pleadings.

[38] The rates and time claimed by the mother were a bit high.

[39] 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.). The father was imputed with annual income of $18,000 and now must make ongoing and retroactive support payments. His ability to pay costs is limited.

[40] The court will permit the father to pay these costs at $50 each month. However, this consideration will be subject to his maintaining his support and costs payments in good standing.

[41] The court finds that the father should have reasonably expected to pay the costs that will be ordered if the mother was successful at trial.

Part Five – Conclusion

[42] Balancing all of these considerations, a final order shall go on the following terms:

a) The father shall pay the mother’s costs of $5,000, inclusive of fees, disbursements and HST. b) The father may pay the costs at the rate of $50 each month, starting on March 1, 2023. However, if he is more than 30 days late in making any child support or costs payment after March 1, 2023, the entire amount of costs then owing shall immediately become due and payable.

Released: February 17, 2023

Justice Stanley B. Sherr