Court File and Parties

Date: January 19, 2018

Court File No.: D10430-17

Ontario Court of Justice

Between:

N.T. Applicant

- and -

R.R.K. Respondent

Counsel:

• Kenneth E. Snider, for the Applicant
• Barbara Puckering, for the Respondent
• Christine Maley, for the City of Toronto, Assignee

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

[1] On December 4, 2017, the court released its endorsement arising out of motions brought by the parties regarding temporary custody of their six-year-old child (the child) and the applicant's (the mother's) claim for temporary spousal support. See: N.T. v. R.R.K., 2017 ONCJ 829.

[2] The court granted the mother temporary custody of the child and ordered the respondent (the father) to pay her temporary spousal support of $884 each month. The court gave the parties the right to make written costs submissions.

[3] The mother seeks costs of $2,712 from the father. The father submits that no costs should be paid.

[4] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that modern costs rules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[5] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) 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. To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson.

[6] The mother did not make an offer to settle. The father's offer to settle was to adjourn the motion (without any spousal support payments), to obtain further financial disclosure from the mother. The father's request for an adjournment of the motion was denied.

[7] The court wrote about the importance of making offers to settle in paragraphs 4-5 of Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774 as follows:

4 It was surprising that there were no formal offers to settle in this case. It is reflective of the polarity of the parties. It should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute.

5 There are consequences in the rules for not making or accepting reasonable offers to settle. Subrule 18(14) sets out the costs consequences of not accepting an offer to settle that is as good as or better than the final result. When determining the reasonableness of a party's behaviour in the case, clauses 24(5)(b) and (c) of the rules direct the court to examine the reasonableness of any offer made, withdrawn or not accepted. This does not preclude the court from examining the failure of a party to make an offer to settle.

[8] This court has also previously written that this principle is equally applicable to making offers to settle on motions. See: H.F. v. M.H., 2014 ONCJ 526.

[9] The failure of a party to make an offer to settle will usually be considered unreasonable behaviour and have adverse costs consequences on them.

[10] The court took into consideration that the mother made late financial disclosure, making it more difficult for the father to make an offer to settle on the spousal support issue.

[11] The mother was the more successful party based on the positions taken by the parties at the hearing of the motions. The father sought a temporary joint custody order – the court granted the mother's request for temporary sole custody of the child. The mother sought temporary spousal support of $1,000 each month in her notice of motion and $884 each month at the hearing of the motion. The latter amount was ordered. The father opposed any order for temporary spousal support being made.

[12] The father did not rebut the presumption that the mother is entitled to costs.

[13] In making this decision, the court considered the factors set out in subrule 24(11), which reads as follows:

24(11) A person setting the amount of costs shall consider:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[14] The case was important for the parties. It was not complex or difficult.

[15] The failure of the parties to make meaningful offers to settle was unreasonable behaviour, as was the mother's late delivery of financial disclosure. The parties acted very reasonably in resolving access and child support issues that were incorporated into the temporary order.

[16] The rates and time claimed by counsel for the mother are reasonable.

[17] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. Both these cases point out that when assessing costs it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs....Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

[18] The father has the ability to pay the costs that will be ordered.

[19] Taking into account all of these considerations, an order shall go that the father shall pay the mother's costs fixed in the amount of $1,800, inclusive of fees, disbursements and HST.

[20] The father may pay the costs at the rate of $150 per month starting on February 1, 2018.

Released: January 19, 2018

Justice S.B. Sherr