Court File and Parties

Date: February 27, 2024 Court File No.: D43472/23

Ontario Court of Justice

Between:

Andrake Swaby, Applicant (Maria Joachim, for the Applicant)

- and -

Rusheda Foreshaw, Respondent (Lauren Israel, for the Respondent)

Heard: In Chambers

Justice S.B. Sherr

Costs Endorsement

Part One – Introduction

[1] On January 29, 2024, the court delivered oral reasons regarding the applicant’s (the father’s) motion to increase his parenting time to the parties’ 6-year-old child. The court, due to concerns with the father’s parenting, reduced his temporary parenting time.

[2] The respondent (the mother) was the successful party on the motion. She was given permission to make written costs submissions. She seeks costs of $8,000 payable before April 12, 2024. This date is scheduled for a settlement conference.

[3] The father asks that no costs be ordered.

Part Two – General Legal Considerations

[4] 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).

[5] 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.

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

[7] 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 Three - Success

[8] 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 22584 (ON SC), [2000] O.J. No. 330 (SCJ- Family Court).

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

Part Four – Subrule 18 (14)

[10] The mother made an offer to settle dated August 15, 2023 proposing to settle the entire case.

[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:

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.

[12] 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).

[13] The onus of proving that the offer is as or more favourable than the motion result is on the person making the offer. See: Neilipovitz v. Neilipovitz [2014] O.J. No. 3842 (SCJ).

[14] 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.

[15] The mother’s offer to settle did not attract the costs consequences set out in subrule 18 (14). It contained terms that extended beyond the scope of this motion and required acceptance of its terms on a final basis. The mother should have made an offer to settle the discrete issue on this motion.

Part Five – Amount of Costs

5.1 Legal Considerations

[16] 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.

[17] The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855.

[18] Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award. See: Hughes v. Hughes, 2024 ONSC 1119; Ali Hassan v Abdullah, 2023 ONCJ 186, at para 61; Beaver v Hill (ONSC), at para 51.

[19] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003) 2003 18880 (ON CA), 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.

[20] 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.

[21] 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.

5.2 Analysis

[22] The issue on the motion was important to the parties. It was not complex or difficult.

[23] Both parties acted reasonably by making offers to settle.

[24] The father’s position on the motion was unreasonable. He has been stuck on obtaining an equal parenting time order. The father has parenting limitations. The evidence was nowhere close to supporting the relief he sought. The court ordered temporary parenting time on alternate Saturdays from 1 p.m. until Sundays at 6 p.m.

[25] The father’s insistence on equal parenting time is creating significant costs for the mother. If he refuses to bend on this issue there will be a costly trial.

[26] It is important to send the message to the father that litigation is expensive. If he takes unreasonable positions he will have to bear the cost.

[27] The rate of $450 each hour claimed by the mother’s counsel is reasonable given her 31-years-experience.

[28] The father’s counsel’s bill of costs indicates she spent a similar amount of time on the motion as the mother’s counsel. The court finds the time claimed by the mother to be reasonable.

[29] The court finds the father should have reasonably expected to pay the costs that will be ordered if he was unsuccessful on the motion.

[30] The court further finds the father has the ability to pay the costs that will be ordered. His annual income is approximately $60,000.

[35] The court will order the father to pay the mother’s costs fixed at $5,000.

[31] The mother asks for the costs to be paid prior to the settlement conference scheduled for April 12, 2024. The court will not order full payment by that date. The father cannot afford that. However, costs consequences should have some immediacy to be fair, effective and achieve the costs purposes set out earlier in this decision. See: Ogunboye v. Faoye, 2023 ONCJ 112.

[32] The father shall be required to pay $2,500 costs by April 1, 2024, failing which the entire amount will immediately become due and payable. If this is paid, the father may pay the balance of the costs at $250 each month, starting on May 1, 2024. If he is more than 30 days late in making any of these payments, the entire amount of costs then owing shall immediately become due and payable.

Part Six – The Order

[33] An order shall go as follows:

a) The father shall pay the mother’s costs of the motion in the amount of $5,000, inclusive of fees, disbursements and HST. b) The father shall be required to pay $2,500 towards the costs by April 1, 2024, failing which the entire amount of costs then owing shall immediately become due and payable. c) If the father pays the $2,500 costs within the timeline set out, he may pay the balance of the costs at $250 each month, starting on May 1, 2024. If he is more than 30 days late in making any of these payments, the entire amount of costs then owing shall immediately become due and payable.

Released: February 27, 2024 _____________________ Justice S.B. Sherr