Court File and Parties
Date: August 26, 2019
Court File No.: D72209/14
Ontario Court of Justice
Between:
Natnale Berhanu Applicant
Counsel: Stephanie Okola, for the Applicant
- and -
Linda Awanis Respondent
Counsel: Sage Harvey, for the Respondent
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] On July 19, 2019, the court released its reasons for decision arising out of a two-day trial of the applicant's (the father's) motion to change the parenting orders for the parties' three-year-old twin girls (the children).
[2] The court dismissed the father's requests for custody of the children and for the children's residence to be changed from Niagara Falls to Toronto. The court did grant the father extensive access to the children on a graduated basis and gave him rights of information regarding them.
[3] The court provided the parties with the opportunity to make written costs submissions. The father seeks his costs of $20,899.02. The respondent (the mother) seeks an order for no costs, but if costs are ordered she seeks costs against the father of $5,000.
Part Two – Legal Considerations
[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:
(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).
[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.
[8] 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). 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, [2008] O.J. No. 1978 (SCJ).
[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 court may take into account any offer to settle pursuant to subrule 18(16) even if it does not attract the costs consequences set out in subrule 18(14).
[11] Subrule 24(6) states that if success in a step is divided, the court may apportion costs as appropriate.
[12] 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, per Justice Alex Pazaratz.
[13] 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.
[14] 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.). However, a party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih, pars. 7-13.
[15] The court adopts the comments of Justice Heather McGee in Mohr v. Sweeney, 2016 ONSC 3338, where she writes, "those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings."
Part Three – Offer to Settle and Success
[16] The parties both served offers to settle dated July 12, 2019 – just one day before the trial. The offers should have been served much earlier. Parties require a reasonable period of time to process and make an informed decision about whether to accept an offer. See: E.O. v. O.K., 2018 ONCJ 578.
[17] The costs consequences set out in subrule 18(14) do not apply to either offer to settle. Neither offer was more favourable for the other party than the trial result.
[18] The father sought a change in custody and wanted the children's residence changed from Niagara Falls to Toronto. The mother opposed these requests. The mother was the successful party on these issues.
[19] The father sought equal parenting time with the children at trial (his offer to settle did not address his request for access). The mother proposed that the children engage (for an indefinite period) in reintegration counselling in Niagara Falls before supervised access with the father would take place.
[20] The court ordered day access between the children and the father to quickly increase to overnight access – unsupervised. The court also set out a holiday schedule.
[21] There was divided success on the access issue, but overall the father was the more successful party.
[22] The court found that the mother had unreasonably restricted the father's access with the children. The father should have served a severable offer to settle that included an offer to increase his access with the children. He had not seen the children for nine months and asked that they be placed in his care on the first day of school. He did not come close to establishing that his requests for custody (despite the recommendation of the reunification counsellor), equal parenting time or for the mother to return to Toronto with the children were in the children's best interests.
[23] There was divided success at trial. However, the dominant issue at trial was the father's parenting time with the children and how to structure an order that would ensure that the children have a relationship with him. The court finds that he was more successful at trial than the mother.
[24] The mother did not rebut the presumption that the father is entitled to costs.
Part Four – Analysis
[25] This motion was important to the parties. It was not complex or difficult.
[26] The rates and time claimed by the father were not challenged by the mother. They were reasonable and proportionate.
[27] The reasonableness of the parties' behaviour has to be examined in context. On April 4, 2018, at the original trial, Justice Roselyn Zisman found that the mother had engaged in a course of conduct that ensured that the children would not have a relationship with the father. She warned the mother that there would be consequences if she did not comply with her order for reintegration counselling and access.
[28] This court found that the mother has failed as a parent in facilitating the father's relationship with the children and bears most of the responsibility for the children not seeing him. She has been overprotective of the children, has been difficult for professionals to deal with and does not adequately value the father's relationship with the children.
[29] The father had to bring the case back to court if he was to have any relationship with the children.
[30] The mother's unreasonable behaviour warrants costs consequences.
[31] The father also acted unreasonably, although to a much lesser extent than the mother. He chose not to exercise any access with the children for nine months, despite being offered some access by the mother. His anger has contributed to the children's perception of him.
[32] Justice Zisman had ordered that the parties each pay 50% of the costs of the reintegration counsellor (total of about $7,700). The father seeks an order that the mother indemnify him for his share of these costs.
[33] The mother bears most of the responsibility for the breakdown of the reintegration counselling process. It is appropriate that she pay most of these costs.
[34] The mother personally has limited means, although she lives for free in her parents' home in Niagara Falls. The court took this into consideration in making this order.
Part Five – Final Order
[35] Taking into account all of these factors the mother shall pay the father's costs of $6,000, inclusive of fees, disbursements and HST.
Released: August 26, 2019
Justice S.B. Sherr