Court File and Parties
Date: October 3, 2019
Court File No.: D20773/18
Ontario Court of Justice
Between:
Kamesha McIntyre
Clifton Leung, for the Applicant
Applicant
- and -
Rhondell Garcia
Lillian Ezeogu, for the Respondent
Respondent
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] On September 3, 2019, the court gave its oral reasons for decision arising out of cross-motions brought by the parties. The court ordered that the parties' 13-year-old son (the child) have his temporary primary residence with the applicant (the mother) and attend the school in the mother's neighbourhood. The court granted generous temporary access to the respondent (the father).
[2] The parties were given the opportunity to make written costs submissions. The mother seeks her costs of $3,824.20, inclusive of fees, disbursements and HST. The father asks that no costs be ordered.
Part Two – Legal Considerations
[3] 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).
[4] 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.
[5] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[6] 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.
[7] 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).
[8] 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.
[9] 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).
[10] 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.
[11] Close is not good enough to attract the costs consequences of 18(14). The offer must be as good or more favourable than the trial result. However, even if the offer does not attract the costs consequences set out in subrule 18(14), it may be considered under subrule 18(16). See: Gurley v. Gurley, 2013 ONCJ 482.
[12] 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.
[13] 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.). 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. Those who can least afford litigation should be the most motivated to avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3238.
Part Three – Offers to Settle
[14] Both parties made offers to settle the motions.
[15] The mother's offer to settle was more favourable to the father than the result on the motions. She proposed that the child have his primary residence with her. This was ordered. Further the court ordered that she can make final decisions about the child's educational issues and the services required to meet his needs. She offered to have the child attend his present school. This too was ordered by the court. The temporary access ordered was similar to the proposal contained in her offer. She offered the father temporary access on three weekends each month from Friday to Sunday morning, together with two overnights each week. The court ordered access on two out of three weekends, the weekends extending to a return to school on Monday mornings, together with one evening each week.
[16] The father submitted that he did not refuse the mother's offer. He maintained that he was agreeable to it so long as it represented the child's wishes. His offer to settle was that the child's primary residence would be in accordance with the child's wishes and that the child would attend the school closest to his primary residence.
[17] This was not an acceptance of the mother's offer to settle. The father's offer to settle delegated the residency and school decisions to the child. The mother chose not to accept this offer.
[18] When the motions were argued the father submitted that the child wanted to live with him and change schools. It was clear that he was not agreeing to the child having his primary residence with the mother.
[19] Subrule 18(14) sets out that the costs consequences shall be applied unless the court orders otherwise. The court finds no basis to order otherwise.
Part Four – Analysis
[20] This motion was important to the parties. It was not complex or difficult.
[21] The court finds that the time and rates claimed by the mother for her counsel are reasonable and proportionate. The legal fees charged for the student-at-law and law clerk employed by her counsel ($175 per hour) are excessive, but just over two hours were claimed for their services. The mother was proportionate by only claiming costs from August 26, 2019. She served her offer to settle on August 27, 2019.
[22] The mother acted reasonably. The father acted unreasonably by being unresponsive to requests to resolve the residency and schooling issues during the summer (he was self-represented at the time).
[23] The father has limited means. He is presently unemployed. The court will take this factor into account by permitting him to pay the costs over a reasonable period of time.
Part Five – Final Order
[24] Taking into account all of these factors the father shall pay the mother's costs fixed in the amount of $3,000, inclusive of fees, disbursements and HST.
[25] The father may pay the costs at the rate of $150 each month starting on November 1, 2019. However, if he is more than 30 days in default of any costs payment, the full amount of costs then owing shall immediately become due and payable.
Released: October 3, 2019
Justice S.B. Sherr