Court File and Parties

Ontario Court of Justice

Date: September 18, 2020

Court File No.: Toronto D21359/18

Between:

Morgan Ashlee Lindo Applicant (Mother)

— AND —

Talal Sobhi Abdelhameid Respondent (Father)

Before: Justice Robert J. Spence

Counsel:

• Ms. Katie Gaboury, counsel for the applicant mother
• Mr. Sheldon Tenenbaum, counsel for the respondent father

Endorsement on Costs following Written Submissions

Released September 18, 2020

1: INTRODUCTION

[1] Following the release of my trial decision on August 24, 2020, I gave leave for the mother to seek her costs. See Lindo v. Abdelhameid, 2020 ONCJ 370. She has now done so. And the father has filed his response to the mother's request.

[2] The mother seeks costs in the amount of $10,802, inclusive of disbursements and H.S.T.

[3] Of this amount, mother's counsel states that $8,389 is attributable to the trial held before me, and $2,412 is attributable to a proceeding before Justice Curtis on January 10, 2020 where Justice Curtis stayed father's request to proceed with a motion and reserved on mother's costs of that stayed motion.

[4] Although it is not entirely clear from the father's submissions, he seems to be suggesting that a more appropriate costs award is $4,500.

2: LEGAL CONSIDERATIONS

2.1 General Principles

[5] The case of Mattina v. Mattina, 2018 ONCA 867 sets out the following fundamental purposes of modern costs rules:

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] The Court of Appeal in Beaver v. Hill, 2018 ONCA 840 emphasized the importance of reasonableness and proportionality, in the exercise of the court's discretion in awarding costs.

[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 consider how the order compares to any settlement offers that were made. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ).

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

2.2 Offers to Settle

[10] 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:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. 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.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[11] Even if subrule 18(14) does not apply, subrule 18(16) provides that the court may take into account any written offer to settle, the date it was made and its terms when exercising its discretion over costs.

[12] The onus of proving that the offer is as good 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).

[13] The technical requirements of subrule 18(14) must be met to attract the costs consequences that subrule. See: Ajiboye v. Ajiboye, 2019 ONCJ 894. In Clancy v. Hansman, 2013 ONCJ 702 this court found that an offer to settle did not meet the technical requirements of subrule 18(14) writing at paragraph 12:

A secondary deficiency in the offer to settle is that it was withdrawn 5 minutes before the commencement of the hearing. Paragraph 3 of subrule 18(14) requires that the offer must not have expired or been withdrawn before the hearing starts. This offer had expired before the hearing started. If counsel wish to put expiry clauses in their offers that will comply with the condition in paragraph 3 of subrule 18(14), the expiry date should be after the start of the hearing.

2.3 Other Factors Affecting Costs Orders

[14] 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.

[15] Subrule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24(12)(a)(i) above). It reads as follows:

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

[16] Family law litigants are responsible for, and accountable for, the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.

[17] 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.

[18] 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.

3: ANALYSIS

3.1 Costs before Justice Curtis on January 10, 2020

[19] On November 20, 2019, Justice Curtis as the case management judge ordered costs against the father in the amount of $500 for an appearance on that date.

[20] The father did not pay those costs.

[21] On January 10, 2020, the father brought a motion returnable before Justice Curtis. However, he had yet to satisfy the outstanding costs order. Justice Curtis endorsed:

The order and endorsement made 20 November 2019 was clear and unambiguous. Father was to pay the nominal costs ordered before he is permitted to proceed with his motion. Father's motion is stayed until $500 costs order is paid in full . . . . Mother's costs of father's motion are reserved.

[22] It is the reserved costs of that stayed motion that this court is being asked to decide.

[23] This court has no details regarding father's stayed motion.

[24] The mother's Bill of Costs for that motion seeks total fees and disbursements in the amount of $2,412.

[25] The Bill of Costs and the mother's submissions regarding this motion shed very little light on the nature of that motion, its importance and complexity.

[26] The Bill of Costs details a total of 11.2 hours spent by one lawyer, an articling student and a law clerk, with hourly rates of $200 for the lawyer, $150 for the articling student and $90 for the law clerk.

[27] While these hourly rates appear reasonable, there is a lack of detail which is necessary to otherwise inform the court about the nature of the motion.

[28] That lack of detail regarding the stayed motion is an omission which is attributable to the mother, as the person seeking costs. It therefore makes it almost impossible for the court to consider the factors under subrule 24(12).

[29] The mother did not serve an Offer to Settle the motion.

[30] Having regard to those omissions and the principles enunciated earlier, the court awards costs in the amount of $1,200 for the stayed motion.

3.2 Costs of the Trial

[31] The focus of the trial was whether to impute income to the father for child support purposes.

[32] The trial lasted one day.

[33] The court imputed an annual income of $57,699 to the father and, on that basis, ordered the father to pay $534 per month to the mother for the support of one child, support to commence January 1, 2018.

[34] The mother served two Offers to Settle. The first Offer was served June 26, 2020. That Offer sought child support in the amount of $248 per month based on minimum wage from July 1, 2020 to December 31, 2020, increasing to $534 per month on January 1, 2021. That Offer also fixed arrears owing by the father in the amount of $10,000 as at July 1, 2020, to be paid by him at the rate of $100 per month.

[35] The paragraphs in that Offer were severable.

[36] The mother's second Offer was served August 18, 2020. That Offer proposed ongoing support in the amount of $400 per month based on an imputed income to father in the amount of $43,500, together with retroactive support owing by father in the amount of $10,000, to be paid by him at the rate of $100 per month.

[37] The paragraphs in that Offer were severable. The Offer remained open for acceptance until one minute following the commencement of the trial.

[38] The father served one Offer to Settle on August 9, 2020 in which he offered to pay support in the amount of $250 per month based on imputed annual income to him in the amount of $29,300. He also proposed setting arrears of support owing in the amount of $5,000 fixed as at September 1, 2020, to be paid by him at the rate of $250 per month.

[39] Based upon the foregoing Offers and the result at trial, mother was the successful party. As the successful party, she is presumptively entitled to her costs.

[40] That presumption was not rebutted or contested.

[41] Mother's obtained a result at trial which exceeded her Offer dated August 18, 2020. However, that Offer does not fall within Rule 18(14) as it was not served at least 7 days prior to the start of trial.

[42] That said, pursuant to subrule 18(16) I do take this Offer into consideration.

[43] The mother's actions in making two Offers to Settle demonstrate reasonableness in her approach to this litigation.

[44] The father's Offer was unreasonably low, having regard to the outcome at trial.

[45] Of greater significance, the father's behaviour was particularly unreasonable given his complete failure to pay any child support pursuant to Justice Curtis' temporary support order dated December 27, 2018.

[46] The issue of child support was an important issue for the mother and the child.

[47] The trial was not complex.

[48] The mother's Bill of Costs reveals that 35.1 hours was spent by two lawyers, an articling student and a law clerk in counsel's firm. Their respective hourly rates are all reasonable.

[49] Father's counsel points out that he spent 20 hours in respect of the trial.

[50] It appears that he made this comparison of hours spent in order to suggest that the time spent by mother's counsel was unreasonably high.

[51] If that was the intent, I do not agree that this is a valid comparison to make. Father's counsel was retained only about 5 weeks prior to trial, so that he did the best he could given the limited time available to him.

[52] In contradistinction, mother's counsel began preparing for trial several weeks earlier than the father.

[53] More importantly, the time spent by mother's counsel resulted in complete success for the mother's claims.

[54] Father's counsel also submitted that because both sides were legally aided the costs ought to be reduced.

[55] However, while one of the purposes of costs orders is to indemnify a party, the fact that a party may be legally aided is not a consideration which will reduce costs otherwise ordered by a court. See Holt v. Anderson; Ramcharitar v. Ramcharitar, 62 O.R. (3d) 107 (S.C.J.)

[56] Father's counsel referred in his submissions to Palmer v. Campbell, 2017 ONCJ 412. This was a costs decision in which Justice Stanley Sherr awarded $10,000 to the successful applicant following a one-day trial, where Justice Sherr imputed income to the father and noted the father's unreasonable behaviour. That decision does not assist the father in the present case. If anything, the reasoning of Justice Sherr assists the mother.

[57] The mother's reasonable behaviour combined with the father's unreasonable behaviour takes the claim for costs very close to full recovery.

[58] And finally, as I noted earlier, while the court shall consider a person's ability to pay costs, the ability to pay is not to act as a shield against a costs award.

[59] Having imputed income to the father in the amount of $57,699, I do not conclude that there is an inability to pay costs. However, my order will permit him to pay the costs over a period of time.

[60] Moreover, I find that the father's unreasonable behaviour in this case must be sanctioned by the award of costs which I conclude is necessary.

[61] I find that it is fair, reasonable and proportionate to award costs pertaining to the trial in the amount of $7,500.

[62] In sum, the father will pay the mother's costs in the total amount of $8,700, comprised of the following:

• for the stayed motion before Justice Curtis – $1,200; and
• for the trial – $7,500

[63] The father shall pay the total costs at the rate of not less than $500 per month commencing October 1, 2020, until fully paid.

[64] Costs payable by the father to the mother in the amount of $8,700 shall be enforceable by the Family Responsibility Office as an incident of child support.

Released: September 18, 2020

Justice Robert J. Spence (Signed electronically)