Court File and Parties

Date: July 8, 2024 Court File No.: D41138/21

ONTARIO COURT OF JUSTICE

B E T W E E N:

W.H.C. ACTING IN PERSON APPLICANT

- and -

W.C.M.C. GLENDA PERRY, for the RESPONDENT RESPONDENT

Heard: JULY 5, 2024

Justice S.B. Sherr

COSTS ENDORSEMENT

Part One – Introduction

[1] The parties both brought motions to change the final parenting order of Justice Debra Paulseth, dated May 31, 2022 (the existing order). The existing order was made after a 5-day trial.

[2] The applicant (the father) issued his motion to change on February 12, 2024. The respondent (the mother) issued her response to motion to change on March 6, 2024.

[3] On April 29, 2024, the court stayed the father’s motion to change (the stay order). The court required the father to pay the mother $18,000 towards outstanding costs orders to lift the stay. The court also ordered that if he failed to pay this amount within 60 days his motion to change would be dismissed.

[4] The total costs owing by the father to the mother from the original proceeding are $54,800. On June 30, 2021, the court ordered the father to pay the mother $4,800 costs arising from a temporary motion. On August 5, 2022, Justice Paulseth ordered the father to pay the mother her trial costs of $50,000.

[5] The father has not paid anything towards these costs orders.

[6] On May 15, 2024, the father filed a Form 12 Notice of Withdrawal of his motion to change.

[7] On July 5, 2024, the court ordered the changes to the existing order sought by the mother in her response to motion to change.

[8] The mother seeks her costs of $9,373.35 for these motions, payable immediately. She also seeks an order requiring the father to obtain leave from the court prior to bringing any further motions in this case.

[9] The father proposed to pay 50% of the costs sought by the mother over the course of one year. He opposed any restrictions on bringing further motions in this case.

Part Two – General costs principles

[10] 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).

[11] 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.

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

[13] 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 – Withdrawal of the father’s motion to change and success

[14] Subrule 12 (3) addresses costs when a case is withdrawn. It reads as follow:

Costs payable on withdrawal

12 (3) A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise.

[15] 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).

[16] The mother was the successful party on these motions.

[17] The father did not rebut the presumption that the mother is entitled to costs based both on her success in this case and his withdrawal of his motion to change.

Part Four – Other legal factors affecting costs orders

[18] 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.

[19] 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. 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] 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 Five – Costs analysis

[21] This case was important for the parties. It was not complex or difficult.

[22] Neither party presented an offer to settle. The court did not expect the mother to make an offer to settle in these circumstances, as the court required the father to first pay her $18,000 before he could proceed.

[23] The father engaged in protracted litigation with the mother in 2021 and 2022. He was unsuccessful. It was unreasonable for him to start the litigation again without having paid anything towards the outstanding costs orders.

[24] The mother acted reasonably in this matter.

[25] The rates claimed by the mother’s counsel were reasonable.

[26] The time claimed by the mother’s counsel was reasonable.

[27] Judges have previously sent strong messages to the father about the costs of unreasonable litigation. He knew, or ought to have known that the court would order costs in an amount close to that sought by the mother if he was unsuccessful.

[28] The father told the court there have been no changes in his financial circumstances since Justice Paulseth made her costs order of $50,000 on August 5, 2022. This court finds he can pay the costs that will be ordered.

[29] The court will not order monthly payments towards the costs order, as requested by the father. He has previously been given the opportunity to make monthly costs payments and made none of them.

[30] The father shall pay the mother’s costs fixed at $7,000, payable immediately.

Part Six – Leave to bring further motions

[31] The mother seeks an order requiring the father to obtain leave from the court prior to bringing any motions in this case. The father opposes that request.

[32] The court has the authority pursuant to subrules 14 (21), 15 (27) 1 (6) and rule 2 to require a litigant to obtain leave of the court prior to bringing any motions in the case (leave orders). See: The Children’s Aid Society v. VD, 2017 ONCA 514. See: Toronto Catholic Children’s Aid Society v. D.G., 2020 ONSC 4311; Watson v. Watson, 2023 ONCJ 435.

[33] Courts should be cautious before making leave orders, particularly regarding parenting issues. See: Rodriguez v. Vella, 2022 ONCA 870.

[34] This court has written that leave orders should not be made just because a party was unsuccessful on one motion to change. Something more is required. See: Sajid v Mahmood, 2023 ONCJ 120; Ambia v. Degenstein, 2023 ONCJ 445.

[35] The court finds it is just and appropriate in this case to make a leave order. Justice Paulseth found that the father acted unreasonably in her costs decision of August 5, 2022. This court has found that the father has acted unreasonably on the motions to change. He has put the mother through significant emotional and financial stress. He has not paid anything towards sizeable court orders. He cannot continue to litigate with impunity.

[36] If a leave order is not made, there is nothing to prevent the father from issuing another motion to change the parenting order next week and starting the cycle of litigation all over again. This would be a circumvention of the terms of the stay order that required him to pay $18,000 towards the outstanding costs orders before he could proceed. It would be an abuse of process if this happened.

[37] The court also took into consideration that the mother has complied with all parenting orders.

[38] The court will not order terms for a leave motion at this time. However, if there are no material changes in his financial circumstances, the father should expect that the court will require him to pay the $18,000 set out in the stay order, plus the costs ordered below, before leave is granted.

Part Seven – Conclusion

[39] An order will go on the following terms:

a) The father shall pay the mother’s costs of these motions in the amount of $7,000, inclusive of fees, disbursements and HST.

b) The father must obtain leave of the court prior to bringing any further motion in this case.

Released: July 8, 2024 _____________________ Justice S.B. Sherr