DATE: December 17, 2024 COURT FILE NO. D44704/243 ONTARIO COURT OF JUSTICE
B E T W E E N:
MELISSA WRIGHT
JANET DABY, for the APPLICANT
APPLICANT
- and – JERMAINE JAMES
ACTING IN PERSON
RESPONDENT
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On November 15, 2024, the court released its reasons for decision following a half-day focused trial to determine the respondent’s (the father’s) child support obligations for the parties’ two children (the children). See: Wright v. James, 2024 ONCJ 582. The court ordered that:
a) The father owes the applicant (the mother) $36,066 for child support arrears.
b) The father may pay the arrears at $250 each month, starting on December 1, 2024. However, if he is more than 30 days late in making any arrears payment or ongoing support payment, the entire amount of arrears then owing shall immediately become due and payable.
c) The father shall pay the mother ongoing child support of $1,194 each month, starting on December 1, 2024. This is the guidelines table amount for two children, based on the father’s annual income assessed at $78,935.
[2] The court found that the mother was the successful party at trial and entitled to costs. She was given the opportunity to make written costs submissions and the father was given a timeline to make a written response. The mother made costs submissions. She seeks costs of $8,092.
[3] The father did not make written costs submissions.
Part Two – General costs principles
[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
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).
[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, 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 Two – Did the mother’s offer to settle attract the costs consequences set out in subrule 18 (14)?
[8] The answer is no.
[9] 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.
[10] 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 4700.
[11] 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.
[12] 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.
[13] 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; Weber v. Weber, 2020 ONSC 6855; Clancy v. Hansman, 2013 ONCJ 702; Ajiboye v. Ajiboye, 2019 ONCJ 894.
[14] Here, the mother made an offer to settle dated November 12, 2024. The offer was served only one day before the trial. This offer did not meet the technical requirements set out in subrule 18 (14), as paragraph 2 of that subrule requires an offer to be made at least 7 days before a trial. Parties require reasonable time to process and make an informed decision about whether to accept an offer. See: Oduwole v. Moses, 2016 ONCJ 653; E.O. v. O.K., 2018 ONCJ 578. The mother’s offer to settle does not attract the costs consequences set out in subrule 18 (14).
[15] When subrule 18 (14) does not apply, the court may still consider 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).
[16] The father did not make an offer to settle.
Part Three – Legal considerations for the amount of costs
[17] 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.
[18] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 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.
[19] 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.
[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 Four – Analysis
[21] This case was important to the parties. It was not complex or difficult.
[22] The mother acted reasonably. She took reasonable positions that were accepted by the court. The court ordered the father to pay child support retroactive to October 1, 2021, in accordance with his income. It ordered him to pay ongoing child support in accordance with his annual income and the table amount in the Child Support Guidelines (the guidelines).
[23] The father acted reasonably by settling the parenting issues. He took unreasonable positions on the support issues. He took the position that he should only pay ongoing child support. He wanted to pay 50% of the guidelines table amount for child support. He did not make an offer to settle. This case did not need to go to trial.
[24] The court also found that the father acted unreasonably by failing to advise the mother, in a timely manner, of his actual income, not paying child support in amounts anywhere close to what he should have been paying and defaulting on the temporary child support orders.
[25] The mother’s counsel’s rates claimed of $450 per hour are very reasonable for a senior family law lawyer.
[26] The time claimed by the mother’s counsel was reasonable and proportionate. She only claimed time for the trial step.
[27] The father can afford to pay the costs that will be ordered, particularly if he is given a reasonable payment plan.
[28] The father should have reasonably expected to pay the costs that will be ordered if he was unsuccessful.
[29] The court finds that the father should pay total costs to the mother of $6,000, inclusive of fees, disbursements and HST. He may pay the costs at $250 each month, starting on January 1, 2025. However, if he is more than 30 days late in making any support payment, or costs payment, the entire amount of costs then owing shall immediately become due and payable.
Part Five – The order
[30] An order shall go as follows:
a) The father shall pay the mother’s costs fixed at $6,000, inclusive of fees, disbursements and HST.
b) The father may pay the costs at $250 each month, starting on January 1, 2025. However, if he is more than 30 days late in making any support payment, or costs payment, the entire amount of costs then owing shall immediately become due and payable.
Released: December 17, 2024
Justice Stanley B. Sherr