Costs Endorsement
Court File No.: 569/24
Date: March 31, 2025
Superior Court of Justice – Ontario
Re: Carla Patricia Ferreira Da Silva, Applicant
And: Ramon Arturo Gomez Quevedo, Respondent
Before: Alex Pazaratz
Counsel:
- Derek Ang, Counsel for the Applicant
- Matthew Newton, Counsel for the Respondent
Introduction
[1] No matter how much the mother blames the father for an aggressive approach to litigation, the inescapable reality is that he took a reasonable position, and he was entirely successful on a motion he was forced to bring to deal with a problem she created.
[2] I have considered written costs submissions flowing from my lengthy February 12, 2025 motion endorsement.
Background and Recap
[3] A brief recap:
a. This was a bitterly contested motion about a three-year-old boy.
b. The parents separated May 12, 2023.
c. On July 14, 2023 the parents signed a nine-page comprehensive Parenting Plan, both assisted by counsel. The plan included provision that the parties would have equal decision-making and equal parenting time.
d. That “equal” arrangement continued for about a year and a half.
e. The father’s work schedule then changed, involuntarily. He asked to spend roughly the same amount of time with his son, except on a different schedule.
f. But notwithstanding the Parenting Plan and the lengthy status quo, the mother unilaterally decided that she would reduce the father’s parenting time to alternate weekends, and she wanted to assume sole decision-making authority for the child.
g. In response to the mother’s unilateral reduction of his time, the father brought a motion to reinstate equal parenting time, but on a modified schedule to accommodate his new work schedule.
h. The mother brought a cross-motion seeking sole decision-making, greatly reduced parenting time for the father, a restraining order, and child support (ongoing and retroactive).
The Result
[4] The result:
a. On January 24, 2025 the motions initially came before me. There was an issue about whether materials had been properly filed. In any event, more materials needed to be filed. The matter was adjourned two weeks. There was disagreement about parenting arrangements in the meantime. I ordered that in the intervening period the father’s equal-time proposal would prevail. Costs of that attendance were reserved.
b. On February 7, 2025 the motions were argued, based upon lengthy materials.
c. On February 12, 2025 I issued a detailed, 40-paragraph endorsement.
d. The father was successful in obtaining a continuation of equal parenting time on precisely the schedule he had proposed. As well he was successful in obtaining a continuation of joint decision-making.
e. The mother’s request for a restraining order was dismissed.
f. Temporary-temporary child support was ordered based on a set-off formula. Quantum of ongoing support could be reviewed after a Settlement Conference.
g. The mother’s claim for retroactive support was also adjourned to the trial.
Key Findings
[5] In my endorsement I set out some key findings:
a. The mother may not like or continue to adopt the Parenting Plan she signed on July 14, 2023 – but it’s the arrangement this young child came to be used to for about 18 months. The mother actively participated in the creation of this status quo.
b. It was only after the father’s work schedule changed that the mother suddenly – and unilaterally – sought to change everything. Her proposed reduction in the father’s time and involvement was disproportionate to the relatively minor change necessitated by the father’s new work schedule.
c. The evidence satisfied me that the long-standing equal-time arrangement had been working very well for the child.
d. While the mother portrayed herself as a better, more sensitive and more caring parent, I found that by every measure these parents appear to be exactly equal in terms of love, commitment, insight and familiarity with the child’s needs.
e. I found that the equal-time arrangement which the parties had created and lived with for 18 months was meeting the child’s needs, and it was in the boy’s best interests that equal time be continued. It was a success story for the child and shouldn’t be disturbed.
f. Similarly I found that there was no basis for the mother’s request for sole decision-making. She was unable to identify a single issue or topic where the existing joint decision-making regime had failed to meet the child’s needs.
g. The only negative comparison stemmed from the mother’s lack of insight in failing to acknowledge the impact on the child if the boy’s time with the father was to be reduced to alternate weekends.
The Parties’ Costs Submissions
[6] The father’s costs submissions include the following:
a. He was successful on an urgent motion and he is presumptively entitled to costs.
b. He is seeking full recovery in the sum of $11,192.65.
c. The issues were extremely important, not only for the father but also for the child who deserved to continue to have both parents involved in his life. The mother’s request on the motion would have significantly prejudiced the child’s emotional health and best interests.
d. The mother was unreasonable and acted strategically, trying to gain an “upper hand” as a result of the father’s new employment situation. She failed to consider the best interests of the child.
e. The motion would have been unnecessary if the mother had agreed to minor modifications to the parenting plan, requested in his lawyer’s December 10, 2024 letter.
f. A second letter, January 7, 2025, was sent attempting to resolve the issue, but the mother’s response on January 8, 2025 clearly stated she was opposed to an equal time-sharing arrangement. The mother provided no explanation to justify her opposition to equal time.
g. The mother’s actions caused the motion to be unnecessarily complicated, delayed and time intensive.
h. The mother was given multiple opportunities to resolve the issue, even on a temporary and without prejudice basis, but she refused all opportunities.
i. The mother’s materials expanded the scope of the dispute. She asked the motions court to make broad decisions in relation to decision-making; an extreme deviation from parenting arrangements; a restraining order; child support arrears; ongoing child support; and a complex determination of whether a parenting plan should be set aside.
j. The mother was warned during the January 24, 2025 first return of the motion that the unsuccessful party would be subject to significant costs implications, and yet she maintained her unreasonable position.
k. Although the mother claims that she is unable to pay costs, her May 4, 2024 financial statement shows that she has approximately $443,057.57 worth of property and investments in her sole name.
[7] The mother’s costs submissions include the following:
a. The mother attempted to negotiate resolution of the issues through counsel but without success. The father took an aggressive approach and commenced his motion on short notice.
b. The father’s unreasonable position on financial issues and child support left the Applicant in a precarious financial situation, and his aggressive behaviour led to a breakdown in communication.
c. The father’s significantly better financial circumstances and wealth disparity promoted needlessly aggressive litigation on his part.
d. Although successful with respect to the result of the motion, the father’s unreasonable behaviour should deprive him of costs.
e. The mother should not be penalized for taking what seemed to be an appropriate or reasonable stance. The determination of the best interests of the child is an ongoing issue which is highly complex and continuously subject to a variety of factors. It was reasonable for the mother to seek a thorough analysis of the best interests considerations.
f. A costs award will significantly compound the mother’s already difficult financial situation.
g. She proposes that no costs be ordered. Her alternate position is that any costs should be on a partial indemnity basis, and they should not be payable until the issues are resolved on a final basis.
Legal Principles Governing Costs
[8] Costs rules are intended 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 pursuant to subrule 2(2) of the Family Law Rules.
[9] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality.
[10] Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious.
[11] The right to bring or respond to a case does not grant either party a license to litigate without regard to the financial and other consequences of litigation. Particularly in family court, litigants must be mindful that court proceedings are expensive, time-consuming, and stressful not only for parents but also for children and extended family.
[12] Parties need to be held responsible for their behaviour to maintain respect for the system.
[13] Rules 18 and 24 govern the determination of costs in family law proceedings.
[14] Rule 24(1) sets out that promptly, after dealing with a step in a case, the court shall, in a summary manner, determine who, if anyone, is entitled to costs in relation to that step and set the amount of costs or reserve the decision on costs for determination to a later step in the case.
Application of the Rules and Analysis
[15] Consideration of success is the starting point. Rule 24(3) creates a presumption of costs in favour of the successful party.
[16] Apart from comparing the end result to any offers which were filed, a broader determination of success entails a comparison of what each party sought in the litigation, and what each party achieved.
a. This assessment includes the positions taken in the pleadings, and the specific relief sought at the hearing, if different.
b. As this court stated in Scipione v. Del Sordo, it often comes down to a simple question: Who got what they asked for?
c. The court may also take into account how the order compares to any settlement offers that were made.
[17] A person need not be successful on all issues and substantial success is sufficient to order costs.
[18] One factor in determining success – or the magnitude of success – is to compare how the order or eventual result compares to any settlement offers that were made.
[19] Rule 24(12) sets out cost consequences where a party fails to accept an offer which the other party then meets or exceeds at trial. In that case, the successful party is entitled to costs until the offer was served, and "full recovery" of costs from that date.
[20] Rule 24(13) sets out that the party seeking elevated costs pursuant to Rule 24(12) has the onus of proving that the order obtained at the motion or trial is as favourable as or more favourable than the terms set out in the offer to settle (or the relevant section[s] in a severable offer).
[21] The scope of the comparison between the eventual outcome and any offers filed is broad and discretionary:
a. 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.
b. Offers need not be exactly the same as the order obtained. What is required is a general assessment of the overall comparability of the offer as contrasted with the order.
c. 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.
d. When comparing an offer to the eventual result, the court may consider financial equivalency. For example, a payor’s offer of lump sum spousal support may trigger Rule 18 consequences where the net benefit to the recipient would have exceeded the time limited periodic support which was ordered at trial.
e. But “close” is not good enough to attract the costs consequences of Rule 24(12). The offer must be as good or more favourable than the order obtained.
[22] The rebuttable presumption in Rule 24(12) leaves the court with discretion:
a. Even if the terms of subrule 24(12) are followed, the court still has the discretion not to order full recovery costs.
b. Despite any offer, a successful party is not entitled to a “blank cheque”. The principles of reasonableness and proportionality still prevail in determining an amount, even where there is complete success.
Offers to Settle
[23] The father filed two offers to settle. The mother filed one.
[24] The father’s January 21, 2025 offer dealt with the parenting issues he raised in his motion.
a. Paragraph one precisely anticipated my order, continuing equal time on the schedule the father had proposed.
b. Paragraph two included an option for the father to claim additional parenting time if his work schedule permitted. I specifically rejected this request in my motion endorsement.
c. Paragraph three correctly anticipated the result with respect to the balance of the Parenting Plan continuing – notably included continued joint decision-making.
d. Since the offer was non-severable, and since it included terms not included in the order, this offer does not trigger full-recovery costs.
[25] The father’s January 31, 2025 offer dealt with the issues raised in the mother’s cross-motion.
a. The father correctly anticipated the set-off payment of child support -- $738.00 per month payable by the father – but his offer characterized this as “temporary without prejudice” (which would mean it would continue until trial) while the motion endorsement specified that it was “temporary-temporary without prejudice” subject to redetermination after the parties’ March 10, 2025 Settlement Conference.
b. Otherwise, the second Offer correctly anticipated the result with respect to child support arrears being reserved to the trial judge, and a restraining order not being granted.
c. The minor difference with respect to the characterization of child support payments means that the offer does not trigger full-recovery costs consequences.
[26] But both of the father’s offers are flawed because they include provisions pre-determining the issue of costs.
a. The January 21, 2025 offer states that if the mother accepts by January 22, 2025 there shall be no costs, but if she accepts thereafter the mother shall pay costs “on a substantial indemnity basis”.
b. The January 31, 2025 offer is even more problematic. It sets out that if the mother accepts by February 3, 2025 she shall pay “partial indemnity” costs, and if she accepts thereafter she shall pay “substantial indemnity” costs.
[27] It is unclear why lawyers regularly go to the trouble of preparing offers and then at the end they include a pre-determination of costs which completely subverts the objective.
a. First of all, I have never seen a single occasion where someone accepted an offer that included pre-determined onerous costs consequences. The mere fact of including such a disincentive to acceptance almost dooms the matter to proceeding to a hearing.
b. More to the point, an offer to settle which includes as a non-severable term a predetermination of a costs obligation perverts the Rule 24(12) analysis – because costs can only be addressed after the substantive determination has been made.
c. Rule 24(12) contemplates full indemnity for costs where all of the terms of an offer have been obtained or exceeded in the trial judgment.
d. A party cannot claim credit for accurately predicting a costs determination which a judge has not yet made. An offer which includes costs obligations not yet determined by the court, cannot satisfy the strict requirements of this subsection.
[28] The mother’s January 22, 2025 non-severable offer was a non-starter for multiple reasons.
a. She offered sole decision-making to her. She didn’t get it.
b. She offered the father could have alternate weekends. He ended up with equal time.
c. She offered that the father would pay $16,374.00 retroactive child support. The issue was left to the trial judge.
d. She offered that the father would pay full table child support of $1,472.00 per month. She only got the set-off amount.
e. Her offer included restraining order-related restrictions. She didn’t get them.
f. And to top it off, she also included provision that if the father accepted the offer more than one day after it was served, he would pay costs on a substantial indemnity basis.
[29] The mother’s offer was simply a summary of her best-case scenario, and she didn’t even come close.
Costs Entitlement and Quantum
[30] The father was overwhelmingly successful, so he’s entitled to costs. Unfortunately, while his respective offers reflect a good faith effort to settle the issues, for the above noted reasons, he has not established an entitlement to full-recovery costs.
[31] Nonetheless, even if an offer does not trigger Rule 24(12) costs consequences, Rule 24(14)(iii) allows an unaccepted offer to be considered in assessing the reasonableness and proportionality of a party’s overall conduct in the litigation.
[32] Once entitlement to costs is established, the court must determine the amount – if any – to be paid. Rule 24(14) sets out some of the considerations.
[33] Rule 24(7) provides that in some circumstances a successful party can be deprived of their costs – or even ordered to pay costs -- if they have behaved unreasonably.
a. The mother says the father should be deprived of costs because he litigated in an unreasonable and aggressive manner.
b. To the contrary, I find that it was the mother who litigated in an unreasonable manner. There is no basis to reduce the costs the father is otherwise entitled to as the successful party.
[34] 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. The court may award elevated costs where one party's conduct has been unreasonable.
[35] Rule 24(14) provides criteria for determining the reasonableness of a party’s behaviour in a case. The court must examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle. Many factors must be considered:
a. The reasonableness of litigation conduct must be gauged over the totality of the proceeding. A court can order increased costs to express disapproval of unreasonable conduct. The amount may be higher where a party has had to incur unnecessary added expense as a result of the other party’s unreasonable conduct.
b. Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation.
c. There must be some causal connection between the offensive behaviour and the conduct of the litigation, resulting in unnecessary steps or increased costs.
d. Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award.
e. Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under Rule 24(7).
f. A high or full recovery costs award may be justified where a party persists in advancing unreasonable claims or arguments.
[36] “Reasonableness” and “success” are distinct considerations:
a. Lack of success will not, in itself, attract enhanced costs. Being unsuccessful is not necessarily the same as being unreasonable. But an unsuccessful party pursuing an unreasonable legal position may be liable for enhanced costs.
b. Conversely, Rule 24(7) sets out that a successful party who has behaved unreasonably during a step in a case may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs.
[37] The rules in relation to costs are equally applicable in relation to parenting issues.
a. Unsuccessful parents cannot expect to be shielded from costs liability simply by claiming that they believed their proposal was in the best interests of the child. Almost all parents believe their proposal is in their child’s best interests.
b. There are strong arguments to suggest costs consequences should be more strictly enforced in parenting cases. It is in the best interests of children that their issues be resolved efficiently and amicably. Parents have an obligation to do everything possible to avoid the financial and emotional damage of protracted and needlessly destructive litigation.
[38] Particularly where sensitive and important children's issues are concerned, the court must encourage civil, thoughtful, and respectful dialogue — and discourage vilification and personal attacks. Inflammatory and irrelevant criticism of a parent’s community engagement or political beliefs can constitute unreasonable litigation behaviour.
[39] The mother submits that no costs should be payable because the determination of a child’s best interests is complex, and the mother should not be faulted for inviting a thorough analysis of the issue. And perhaps that submission may have some traction so long as the unsuccessful party was still demonstrably behaving in a child-focussed manner.
[40] But in this case the mother’s request entailed very little logic or factual basis, and even less child-focus.
a. She sought to drastically change a long-standing and beneficial parenting arrangement.
b. Her main argument seemed to be that she shouldn’t have agreed to the arrangement 18 months earlier.
c. The mother showed absolutely no insight – or interest – in the impact on the child of reducing the father from equal-time to alternate weekends.
d. Even at the hearing of the motion her lawyer kept advancing the argument that the father’s proposal would mean that the child’s sleep schedule would be significantly disrupted on certain days – even though the evidence was absolutely clear that this wouldn’t happen.
e. The mother insisted on sole decision-making not because there had ever been a problem with joint decision-making – but rather, she advanced various hypotheticals about how there might be problems with missed medical appointments in the future. There was no factual basis for such self-serving speculation.
f. Indeed, the mother received a preview of things to come, which she completely ignored. At the January 24, 2025 initial return of the motion the mother insisted that as a term of any adjournment her alternate weekend regime should be imposed. Instead, I imposed the father’s detailed equal time arrangement for the short period of the adjournment. That should have been a hint to the mother that the father’s narrative and proposal was more compelling. But instead, when the matter returned on February 7, 2025 for a full hearing, the mother stuck to her position on every topic.
Determining the Amount of Costs
[41] Determining costs requires more than a simple mathematical totalling of how much the successful party paid their lawyer.
a. The amounts actually incurred by the successful litigant are not determinative. The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees.
b. The overall objective is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes considering the amount the unsuccessful party could reasonably have expected to pay if they were unsuccessful in the litigation.
[42] A party’s expectation as to their likely exposure to costs if they are unsuccessful should be at least partially informed by their own approach to the litigation. The right to pursue or defend a claim does not give either party an unfettered right to litigate as aggressively as they wish, without regard to the consequences.
[43] Each party submitted a Bill of Costs:
a. The father’s total fees: $11,192.65.
b. The mother’s total fees: $6,913.91.
c. Clearly both parties should have understood that these motions – on very important issues – were going to be expensive.
[44] The mother submits that notwithstanding the father’s success, no costs (or low costs) should be awarded as a result of her financial situation. The father insists the mother has ample resources to meet a costs obligation.
[45] The financial implications of legal fees - and costs orders – must form part of the costs analysis. But this can be a complicated issue.
a. A costs order should take into consideration the ability of a party to pay costs.
b. The financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and on any children are relevant considerations in reaching a determination on the issue of costs.
[46] However, ability to pay is only relevant with respect to amount of costs to be ordered:
a. A party's financial circumstances cannot be used as a shield against any liability for costs.
b. Ability to pay will be taken into account regarding the quantum of costs.
c. Difficult financial circumstances are a factor to be considered. But they do not always justify depriving a successful party of costs, or reducing the amount of costs.
[47] Ability to pay will be less relevant where the unsuccessful party has acted unreasonably.
a. 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.
b. Parties cannot expect to be immune from an order of costs based on their lack of income or assets. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the Rules.
c. All family law litigants are responsible for and accountable for the positions they take in the litigation.
d. It is counter-intuitive to suggest that the objectives of a cost award are less applicable to a person of modest means.
e. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12).
[48] Potential liability for costs – and the ability to pay those costs – is something all parties should consider before they embark on litigation.
a. Litigation is expensive, time-consuming and stressful for all concerned. The court process is intended to resolve disputes fairly and efficiently. Family court is not a forum for individual litigants to carry on in whatever manner they choose, oblivious to unnecessary expense and other complications they create for the opposing party.
b. Costs consequences typically have a negative impact on the unsuccessful party. Those consequences should be anticipated at the very outset of the litigation – and revisited on an ongoing basis – to encourage efficient and economical resolution.
c. Courts have repeatedly cautioned litigants that they cannot rely on their impecuniosity to shield themselves from cost sanctions, particularly when they have taken an unreasonable position or acted unreasonably in the conduct of the trial.
d. Rich or poor, litigants are responsible for the choices they make. People who can’t afford to pay costs if they lose their case should be very careful about what claims they pursue.
e. Those who can least afford litigation should be the most motivated to seriously pursue settlement and avoid unnecessary proceedings.
f. Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably.
[49] As well, it’s not just the unsuccessful party’s financial hardship which must be considered.
a. An unsuccessful party's ability to pay must be assessed in conjunction with the successful party's ability to absorb legal fees which should not have arisen in the first place.
b. In an equal parenting-time arrangement, the finances of both households must be considered.
c. An onerous costs order against an unsuccessful half-time parent may impact on that parent's ability to provide for a child while in their care.
d. But equally, an inadequate costs order in favour of a successful half-time parent may result in similar deprivation for a child while in their care.
e. In both instances, we want to ensure that litigation expenses do not impoverish the household where the child resides.
[50] I am satisfied that the mother has adequate resources to pay a reasonable costs order.
[51] Ultimately, costs need to be proportional to the issues and amounts in question, and the outcome of the case. Amounts actually incurred by the successful litigant may therefore not be determinative.
[52] The emphasis on proportionality has led to a de-emphasis on hourly rates and time spent by counsel as the key factor in fixing costs.
[53] In the circumstances, considering the importance of the subject matter; the father’s overwhelming success; and the touchstone considerations of reasonableness and proportionality, the mother shall pay to the father costs of the motion fixed in the sum of $8,000.00 inclusive of HST and disbursements.
Alex Pazaratz
Date: March 31, 2025