Court File and Parties

Date: December 1, 2020

Court File No.: D81173/15

Ontario Court of Justice

Between:

M.S.

Helen M. McCullough, for the Applicant

APPLICANT

- and -

D.F.M.A.

Ayesha Hussain, for the Respondent

RESPONDENT

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

[1] On November 2, 2020, the court released its reasons decision granting the respondent's (the father's) motion to change the parenting order of Justice Carole Curtis, dated March 27, 2017, to permit him to have overnight parenting time with the parties' 6-year-old child. See: M.S. v. D.F.M.A., 2020 ONCJ 497.

[2] The parties were given the opportunity to make written costs submissions. The father seeks his costs of $1,301.27. The applicant (the mother) asks that no costs be ordered, but if ordered, that they do not exceed $500.

[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 awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[5] 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.

[6] 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).

[7] The parties agree that the father was the successful party on the motion to change. The mother had sought an order for supervised parenting time for the father – the court ordered overnight parenting time.

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

[9] 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.

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

[11] The father acted reasonably on the motion to change. The mother had entered into temporary minutes of settlement that would have started overnight parenting time, but she resiled from that agreement at court the next day. The court found no justification for her doing this at the hearing of the motion to change. It was unreasonable behaviour and added to the cost of the litigation.

[12] The mother submits that the time claimed by the father is excessive. The court disagrees and finds that the time and rates claimed by the father are reasonable and proportionate. The father did not even include additional costs for disbursements and HST.

[13] The costs claimed appear to have considered the mother's modest financial circumstances. See: MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.).

[14] Neither party made an offer to settle the matter. Ordinarily, that would have reduced the costs award, as offers to settle should have been made. However, the amount claimed by the father is so modest, the court won't reduce the award.

[15] The court will permit the mother to pay the costs in an affordable monthly amount.

[16] Taking into account all of these factors, the mother shall pay the father's costs fixed at $1,307.27, inclusive of fees, disbursements and HST. The mother may pay the costs at the rate of $100 each month, starting on January 1, 2021.

Released: December 1, 2020

Justice S.B. Sherr