Court File and Parties

Date: September 29, 2020

Court File No.: D20773/18

Ontario Court of Justice

Between:

Kamesha McIntyre Applicant

- and -

Rhondell Garcia Respondent

Counsel:

• Clifton Leung, for the Applicant
• Lillian Ezeogu, for the Respondent

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

Part One – Introduction

[1] On September 4, 2020, the court released its endorsement granting the applicant's (the mother's) motion to strike the respondent's (the father's) Answer/Claim. See: McIntyre v. Garcia, 2020 ONCJ 395.

[2] The parties were given the opportunity to make written costs submissions. The mother seeks her costs of $2,581.20, inclusive of fees, disbursements and HST. The father did not make any written costs submissions.

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:

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.

[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] Subrule 24(12) reads as follows:

Setting the Amount of Costs

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. 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

[13] The mother made an offer to settle – the father did not make an offer to settle.

[14] The mother's offer to settle was as favourable to the father as the motion result. She offered to withdraw her motion to strike his Answer/Claim if the father provided her with outstanding disclosure ordered by the court, paid the outstanding costs order of $3,000 and paid her $500 for the costs of her motion.

[15] The court struck the father's Answer/Claim but gave him the opportunity to move to restore it, if, within 30 days he provided the disclosure ordered by the court and paid $3,000 to the mother.

[16] 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. The mother's bill of costs shows that her counsel spent about 9 hours on the case – 2.5 hours before her offer to settle was made. She is entitled to her costs for the time claimed prior to the date her offer to settle was made and for her full recovery costs for the time claimed after the date her offer was made.

Part Four – Analysis

[17] This motion was important to the parties. It was not complex or difficult.

[18] The court finds that the time and rates claimed by the mother for her counsel are reasonable and proportionate.

[19] The mother acted reasonably in this matter. The father has acted unreasonably throughout this case. His Answer/Claim was struck due to his multiple breaches of court orders. Despite a lengthy adjournment of the mother's motion due to the pandemic, he made no effort at all to remedy any of his breaches. He did not even attend on the teleconference for the motion.

[20] The father's counsel advised the court that the father has limited means, although it is difficult to ascertain this due to his lack of financial disclosure.

Part Five – Final Order

[21] Taking into account all of these factors the father shall pay the mother's costs fixed in the amount of $2,400, inclusive of fees, disbursements and HST.

[22] The father has completely ignored multiple orders made by the court. Despite being permitted to pay the September 3, 2019 costs order made against him in monthly instalments, the father made no payments. Accordingly, he will not get the same consideration here. The costs are due and payable immediately.

[23] The father is not required to pay these costs as a condition of restoring his Answer/Claim. He can restore his Answer/Claim by complying with the conditions set out in the court's September 3, 2020 endorsement, within the time limit set out.

Released: September 29, 2020

Justice S.B. Sherr