Court File and Parties

Date: May 6, 2020

Court File No.: D40396/20

Ontario Court of Justice

Between:

V.M.W. Applicant

Counsel: Pamila Bhardwaj, for the Applicant

- and -

J.M.-M. Respondent

Counsel: Lauren Israel, for the Respondent

Heard: May 1, 2020

Justice: S.B. Sherr

Costs Endorsement

Part One – Introduction

[1] This is the costs decision arising out of motions brought by the parties regarding temporary custody and parenting time for their 10-month-old son (the child).

[2] On April 8, 2020 the court delivered oral reasons for decision ordering temporary custody of the child to the respondent (the father). The issue of temporary parenting time for the applicant (the mother) was adjourned until May 1, 2020 for further submissions.

[3] On May 1, 2020, the remaining issue was heard and the court delivered oral reasons for decision. The court ordered that the mother would have parenting time with the child on alternate weekends from Friday at 10 a.m. until Sunday at 6 p.m. and on alternate Wednesdays from 6 p.m. until Thursdays at 6 p.m. The court also ordered temporary incidents of access regarding exchanges of the child, communication, where overnight visits were to take place and about compliance with government COVID-19 health directions.

[4] The father seeks his costs of $3,000 for the motions. The mother asks that no costs be ordered.

Part Two – Legal Considerations

2.1 General Principles

[5] 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).

[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.

2.2 Success

[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).

[9] Subrule 24(6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.

[10] 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.

2.3 Other Factors Affecting Costs Orders

[11] 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.

[12] 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.

[13] 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.

2.4 Analysis of Success

[14] Neither party made an offer to settle.

[15] The father was the successful party on the temporary custody issue.

[16] On April 8, 2020 the court adjourned the issue of the mother's parenting time, as that morning the mother had a falling-out with the people she had been residing with and would no longer be living with them. The court indicated that it would want to hear further evidence from the mother on the return date about her housing, who she would be living with and how she planned to protect the child during her parenting time from the COVID-19 virus.

[17] The mother sought equal parenting time on the return of the motion, or in the alternative, an order that she have parenting time with the child on three out of every four weekends from Thursday to Monday or Tuesday of the following week plus an overnight with the child on the fourth week.

[18] The father proposed parenting time similar to that ordered by the court – the one difference being that the court ordered that the mother's parenting time start at 10:00 a.m. on Fridays, as opposed to the 6 p.m. start time proposed by the father.

[19] The father was the more successful party on the issue of the mother's parenting time.

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

2.5 Amount of Costs

[21] This case was important for the parties. The COVID-19 pandemic added additional layers of complexity as it was more challenging for counsel to gather relevant evidence and have it properly presented to the court. Fortunately, in this case, the parties had the benefit of two experienced and skilled counsel who were able to present the necessary evidence to the court to determine the issues.

[22] The parties should have made offers to settle, particularly on the parenting time issue for the mother, as there was room for compromise. The behaviour of the parties during the litigation was otherwise reasonable. These were issues that had to be determined. The court set out concerns about both parties in its oral reasons for decision. The Children's Aid Society of Toronto is involved with the parties and participated in the first stage of the motion regarding temporary custody of the child due to its concerns about the parties. The results on these motions were not obvious from the outset.

[23] The time and rates claimed by the father were very reasonable and proportionate. Counsel clearly spent more time on the motions than was claimed for costs.

[24] The court also considered the economic circumstances of the mother. She is only 20 years old and is not employed. It will be challenging for her to obtain employment in this economic environment. The mother's only source of income is a modest monthly amount that she receives from the Children's Aid Society of Toronto. The court will address the mother's limited financial circumstances by suspending the costs payment for the balance of 2020. Starting on January 1, 2021 she shall pay the costs that will be ordered at the rate of $75 each month, subject to any further order of the court.

Part Three – The Order

[25] An order shall go as follows:

(a) The mother shall pay the father's costs of the motions fixed at $1,800.

(b) Payment of the costs shall be suspended for 2020.

(c) Starting on January 1, 2021, the mother may pay the costs to the father at the rate of $75 each month. However, if she is more than 30 days late in making any costs payment, the entire amount of costs then owing shall immediately become due and payable.

(d) This costs order is subject to any subsequent order of the court.

Released: May 6, 2020

Justice S.B. Sherr