Court File and Parties
Date: December 9, 2020
Court File No.: D31179/19
Ontario Court of Justice
Between:
Jeremy Morrison (Applicant)
Min Jin, for the Applicant
- and -
Carlie Deenan (Respondent)
Ayesha Hussain, for the Respondent
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] On October 30, 2020, the court heard temporary motions brought by the parties for custody of and parenting time with their 5-year-old child (the child) and for child support. The parties agreed to a procedure whereby they conducted focused cross-examinations of the other party, as credibility was an important part of determining these motions. At the completion of the motions, the court gave oral reasons for decision.
[2] The respondent (the mother) seeks her costs of $3,718.83 for the motions. The applicant (the father) asks that no costs be ordered, or in the alternative, that the court not order more than $2,000 in costs against him.
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). The court should also examine who was the successful party, based on the positions taken in the litigation. See: Lazare v. Heitner, 2018 ONSC 4861.
[8] Subrule 24(6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[9] 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.
[10] The determination of whether success was truly divided does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them. See: Thompson v. Drummond, 2018 ONSC 4762.
[11] Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (SCJ); Mondino v. Mondino, 2014 ONSC 1102.
[12] 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.
[13] 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).
[14] 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.
[15] 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.
[16] 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.
Part Three – Entitlement to Costs
[17] The parties both made offers to settle dated October 28, 2020. Neither was a non-severable offer.
[18] Neither offer to settle attracted the costs consequences set out in subrule 18(14). The offers were considered under subrule 18(16).
[19] The court made a temporary order granting the mother custody of the child. Graduated parenting time was ordered for the father, starting with day parenting time for four weeks and then expanding to single overnight parenting time on alternate weekends. The court ordered that a professional agency supervise the exchanges – to be paid for by the father. The court ordered that the father pay temporary child support to the mother of $176 each month, based on an imputed annual income to him of $22,000. This amount was subject to adjustment once the father provided financial disclosure to the mother.
[20] The mother's offer to settle sought a custody order. It did not address the father's claim for parenting time. She was awarded child support in an amount a bit less than she had offered.
[21] The mother's offer did not contain any element of compromise of the parenting issues.
[22] In her notice of motion the mother sought temporary custody of the child, fully supervised parenting time for the father and child support.
[23] In his offer to settle, the father proposed that the parties have temporary joint custody of the child. He offered that the child would remain in the primary care of the mother. He proposed that he would exercise alternate full weekend (two overnights) and holiday parenting time with the child. He offered to pay temporary child support in an amount slightly more than was ordered – but since his offer was not severable, it was tied to the mother agreeing to an order for joint custody.
[24] The father was reasonable in proposing a compromise of the parenting issues in his offer to settle.
[25] In his notice of motion the father sought temporary custody of the child and child support. At the hearing of the motion, he also sought, in the alternative, an order that he have extensive, unsupervised parenting time.
[26] The mother was the successful party on the dominant issue on the motions – she was granted a temporary custody order. This was seriously contested at the hearing. It followed that she also obtained an order for temporary child support.
[27] There was divided success on the parenting time issue – also an important issue. However, the court finds that the father was slightly more successful on this issue as he was able to obtain an order for graduated unsupervised parenting time with the child (although the court did order supervised exchanges to be paid by him).
[28] The support issue was not contentious and was a minor issue on these motions.
[29] The court finds that, overall, the mother was more successful than the father on the motions. The presumption that she is entitled to costs was not rebutted.
Part Four – Amount of Costs
[30] These motions were important to the parties. Both filed considerable evidence and credibility issues were explored through oral examination. It was more difficult and complex than most temporary parenting motions.
[31] The parties both acted reasonably on the motions.
[32] The court finds that the time and rates claimed by the mother are reasonable and proportionate. The amount of time claimed in her bill of costs was similar to that set out in the father's bill of costs. These were involved motions. Extensive material was filed. Counsel had to prepare for examinations, as well as for their submissions. Both did excellent work.
[33] The court has considered that the father has limited means. The court has also considered that it ordered him to pay the costs of supervised parenting exchanges. The court will give the father the ability to pay the costs in a manner he should be able to afford. It will also defer the start date of the payments.
Part Five – Final Order
[34] Taking into account all of these factors, the father shall pay the mother's costs of the motions fixed in the amount of $1,500, inclusive of fees, disbursements and HST.
[35] The father may pay the costs at $100 each month, starting on April 1, 2021.
Released: December 9, 2020
Justice S.B. Sherr