Court File and Parties

DATE: November 27, 2024 COURT FILE NO.: D5171/24 ONTARIO COURT OF JUSTICE

B E T W E E N:

RINO BALZANO, APPLICANT And MELISSA D’ALESSANDRO, RESPONDENT

COUNSEL: Frank Mendicino, for the Applicant Rob Moubarak and Paras Anand, for the Respondent

HEARD: In Chambers

JUSTICE S.B. SHERR

Costs Endorsement

Part One – Introduction

[1] On November 6, 2024, the court provided oral reasons for decision on the applicant’s (the father’s) motion for temporary parenting time to the parties’ 6-month-old child (the child).

[2] The parties were given permission to make written costs submissions. Both parties made submissions and responded to the other’s submissions. They both claimed they were the successful party on the motion.

[3] The father seeks his costs of $15,270.34.

[4] The respondent (the mother) seeks her full recovery costs of $41,800.58, or in the alternative, costs of $26,486.87. She also seeks costs of $2,900 for her costs submissions.

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:

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.

Part Two – Do any of the offers made by the parties attract the costs consequences set out in subrule 18 (14)?

[9] The answer is no.

[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:

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.

[17] 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] O.J. No. 3842 (SCJ).

[18] 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.

[19] 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.

[12] The technical requirements of subrules 18 (4) and 18 (14) must be met to attract the costs consequences in subrule 18 (14). See: Sader v. Kekki, 2014 ONCJ 41; Jakubowski v. Kopacz-Jakubowski, [2008] O.J. No. 1442 (SCJ); Weber v. Weber, 2020 ONSC 6855; Clancy v. Hansman, 2013 ONCJ 702; Ajiboye v. Ajiboye, 2019 ONCJ 894.

[13] In Sader v. Kekki, supra, Justice Ellen Murray found that an offer to settle contained in a lawyer’s letter did not attract the costs consequences set out in subrule 18 (14), as it was not signed by both the lawyer and the client, as required by subrule 18 (4).

[14] Justice Murray further found that since the offer did not comply with subrule 18 (4) it was not a rule 18 offer and could not be considered under subrule 18 (16) that reads as follows:

COSTS — DISCRETION OF COURT (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

[15] Sader was followed by this court in Mussa v. Iman, 2021 ONCJ 92. The court found an offer sent by counsel in an email and not signed by the client did not comply with rule 18 and the costs consequences set out in subrule 18 (14) did not apply. The court wrote at paragraph 22:

The costs presumption set out in subrule 18 (14) can have significant repercussions – full recovery costs from the date of the offer. That is why full technical compliance with subrules 18 (4) and (14) is required.

[16] In Ajiboye v. Ajiboye, 2019 ONCJ 894, the offer to settle expired at 9 a.m., before the hearing started – so subrule 18 (14) did not apply. The offer was considered under subrule 18 (16). In Grewal v. Grewal, 2021 ONCJ 282, an offer that would have otherwise attracted the costs consequences set out in subrule 18 (14), didn’t, because it stated it was withdrawn 7 days before the trial date.

[17] Here, the mother made two offers to settle. Her first offer to settle was dated August 14, 2024. The offer was non-severable. It was not more favourable to the father than the result on either September 5, 2024 or on November 6, 2024.

[18] The mother’s second offer to settle, dated October 31, 2024, was signed by her counsel and not by her. It was not a valid rule 18 offer to settle. The offer also expired one minute prior to the motion. It was not alive when the motion was argued. Lastly, the offer included a provision that the father had to pay substantial costs to the mother. The offer was not more favourable to the father than the final result.

[19] The father made two offers to settle pursuant to rule 18. However, neither offer was more favourable to the mother than the motion result. The first offer to settle was dated August 12, 2024. On September 5, 2024, the court adjourned the father’s motion on terms. The duration and frequency of the parenting time ordered was the same as that proposed by the father. However, the court ordered that one of the parenting days be on Friday, and not the Wednesday requested by the father.

[20] The court did not order as much parenting time as proposed by the father in his second offer to settle, dated November 5, 2024. Further, the offer was served with little time for the mother to process it. The mother said it was served after hours the day before the motion. This offer had little value.

[21] 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 assessing the reasonableness of a party under sub-clause (iii) of subrule 24 (12) (a).

Part Three - Success

[22] 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).

[23] 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; G.E. v. J.E., 2023 ONSC 1743; Kyriacou v. Zikos, supra; Reichert v. Bandola, 2024 ONSC 4573.

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

[25] 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.

[26] 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 Four – Analysis of success

[27] On September 5, 2024, the court adjourned the father’s motion until November 6, 2024, on terms that he have parenting time on three days each week for two hours, increasing by one hour on each visit, starting on October 4, 2024. This was closer to the terms sought by the father.

[28] The father sought an earlier attendance by Form 14B motion, indicating he wanted to clarify the terms of the September 5, 2024 order. The parties had a virtual attendance on October 22, 2024. It quickly became apparent that the father wanted to enforce the September 5, 2024 order, not clarify it. This appearance was not required. Costs were reserved.

[29] On the return of the motion on November 6, 2024, the father asked to increase his parenting time to 4 hours for each visit starting on November 23, 2024. He asked to increase visits to 5 hours on each visit, starting in January 2025.

[30] The mother asked the court to maintain the father’s parenting time at 3 hours on each visit, until January 2025, at which time it would be increased to 4 hours on each visit.

[31] The court increased each visit to 4 hours, starting on December 1, 2024, close to the date requested by the father. It increased the Sunday visits to 6 hours, starting on February 2, 2025. This was a month later than the increase date sought by the father and on only one of the three days he exercises his parenting time. However, the increased time on the Sunday visit was up to 6 hours.

[32] The mother made a reasonable non-rule 18 offer about parenting time on October 31, 2024. However, she required the father to pay her costs of $40,791.41 if he accepted the offer. This turned a reasonable offer to settle into an unreasonable one.

[33] The mother was successful in having one of the father’s days for parenting time take place on Friday instead of Wednesday, so she could take the child to classes at Sick Children’s Hospital.

[34] The court did not place any conditions on the father’s parenting time requested by the mother.

[35] Although there was divided success on the motion, the court finds that overall, the father was the more successful party.

[36] The mother did not rebut the presumption that the father is entitled to a portion of his costs.

Part Five – Other legal considerations

[37] 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.

[38] A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Smith Estate v. Rotstein, 2011 ONCA 491 (Ont CA); Durbin v. Medina, 2012 ONSC 640 (SCJ); Scipione v. Del Sordo, 2015 ONSC 5982 (SCJ); Zhang v. Guo, 2019 ONSC 5767 (Div Ct); Laidman v. Pasalic and Laidman, 2020 ONSC 7068.

[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.).

[40] 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 Six – Analysis

[41] This case was important to the parties. It was not complex. The parties had two one-hour appearances to make submissions on the motion. They each served and filed multiple affidavits. The case was made more difficult because the mother made several allegations of deficient parenting by the father. He was required to address each of these allegations. The court found there was little merit to the mother’s allegations.

[42] The father generally acted reasonably on the motion. However, the court criticized him in its November 6, 2024 oral reasons for his failure to deliver the child’s baptism certificate to the mother in a timely manner. His costs will also be reduced due to the unnecessary appearance he requested on October 22, 2024.

[43] The mother acted reasonably by making offers to settle, although attaching a costs consequence of close to $41,000 to one of her offers was not reasonable.

[44] The court made several adverse findings of fact against the mother in its November 6, 2024 oral reasons, including:

a) The mother’s hypervigilance and anxiety about the child are out of proportion. b) The mother was inferring the worst possible behaviour from the father and the most dire consequences for the child. Her evidence was riddled with hyperbole. c) The mother was interfering with the father’s parenting time. She had breached the temporary parenting time order made on September 5, 2024. d) There was no corroborating evidence of the mother’s parenting concerns about the father. e) The evidence informed the court that the mother has rigid parenting philosophies. The court observed that few parents could meet her parenting expectations. f) The mother’s hypervigilance, anxiety and unilateral behaviour were causing the court more concern about her parenting ability than the father’s. g) If the mother is unable to control her anxiety it will be she who will likely cause the child emotional harm and long-term damage. h) The preliminary evidence informed the court that the mother does not value the father as the child’s parent. She recently wrote to him:

You are causing more harm than good for Angelo at this stage of his development since you are incapable, irresponsible and helpless with meeting his basic needs of sleep and nutrition. The poor baby is suffering while under your care. I think at the back of your mind you know you shouldn’t have any parenting time.

[45] The court, in its oral reasons, determined that the mother:

a) Cannot place limits on where the child is going during the father’s parenting time. b) Should have the child ready on exchanges without excuse. c) Cannot require that the father send her videos with a time stamp to prove the child is on the sleep schedule she has set. d) Cannot require the father to Facetime her during his parenting time. e) Should not be putting the child in the car seat. That is the father’s job. She should exchange the child and leave. f) Should not be tracking the child with air tags during the father’s parenting time.

[46] The father’s counsel’s rates claimed of $425 per hour are very reasonable for a senior family law lawyer.

[47] The court considered that the mother claimed to have spent far more time on the motion than the father. The court finds that too much time was spent by both parties on a straight-forward motion.

[48] The mother can afford to pay the costs that will be ordered.

[49] The mother should have reasonably expected to pay the costs that will be ordered if she was unsuccessful.

[50] The court finds the mother should pay total costs to the father of $6,000, inclusive of fees, disbursements and HST. She may pay those costs at $300 each month, starting on January 1, 2025.

Part Seven – The order

[51] An order shall go as follows:

a) The mother shall pay the father’s costs fixed at $6,000, inclusive of fees, disbursements and HST. b) The mother may pay the costs at $300 each month, starting on January 1, 2025. c) The mother’s claim for costs is dismissed.

Released: November 27, 2024

Justice Stanley B. Sherr