COURT FILE NO. D80982/15 DATE : April 1, 2021
ONTARIO COURT OF JUSTICE
B E T W E E N:
L.B.
ACTING IN PERSON
APPLICANT
- and -
P.E.
WIRI KAPURURA, for the RESPONDENT
RESPONDENT
HEARD: In Chambers
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On March 2, 2021, the court released its reasons for decision regarding a trial about the parenting and support arrangements for the parties’ 6-year-old son (the child). See: L.B. v. P.E., 2021 ONCJ 114.
[2] The parties were given the opportunity to make costs submissions. The applicant (the father) seeks his costs of $8,000. The respondent (the mother) seeks her costs of $8,434.32.
Part Two – Legal Considerations
2.1 General Principles
[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.
2.2 Success
[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] 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.
2.3 Offers to Settle
[11] 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.
[12] Even if subrule 18 (14) does not apply, 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 (subrule 18 (16)) or, in assessing the reasonableness of a party under sub-clause (iii) of subrule 24 (12) (a). See: Mussa v. Imam, 2021 ONCJ 92.
[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] Close is not good enough to attract the costs consequences of 18 (14). The offer must be as good as or more favourable than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482.
2.4 Other Factors Affecting Costs Orders
[16] 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.
[17] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.
[18] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.
[19] 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.
Part Three – Success
[20] The father made a severable offer to settle dated February 18, 2021. None of the Parts in his offer attracted the costs consequences of subrule 18 (14), as the trial result was more favourable for the mother than each Part of his offer.
[21] The father proposed a joint decision-making responsibility order, or that some aspects of decision-making responsibility be allocated to him. The court ordered that the mother have sole decision-making responsibility and primary residence of the child.
[22] The father proposed that he have parenting time on Mondays, Wednesdays and Fridays every week with the drop off of the child on Saturdays at 6 p.m. He sought a shared parenting order. This was not ordered. The father was granted regular parenting time on two out of every three weekends and on alternate Wednesdays overnight.
[23] The father proposed to pay no retroactive child support and to pay ongoing support of $230 each month. The court ordered him to pay child support of $480 each month on an ongoing basis. It also ordered him to pay retroactive support of $19,140.
[24] The father’s position at trial mirrored the position he took in his offer to settle.
[25] The mother made a severable offer to settle dated February 12, 2021.
[26] Part 1 of the mother’s offer to settle addressed decision-making responsibility, the primary residence of the child and support issues. This Part was more favourable to the father than the trial result. The mother was granted her requests for sole decision-making responsibility and primary residence. The court ordered the exact amount of ongoing support that she had offered. The mother was willing to waive her claim for retroactive support. She was awarded retroactive support of $19,140 at trial.
[27] Part 1 of the mother’s offer to settle attracts the cost consequences of subrule 18 (14). There is no reason to order otherwise.
[28] Part 2 of the mother’s offer to settle addresses the father’s parenting time. The mother proposed that he have parenting time on overnights every Wednesday, and on alternate weekends. The court ordered parenting time for the father to take place on alternate Wednesdays overnight and on two out of every three weekends. The mother’s offer was close to, but not better for the father than the trial result. It did not attract the costs consequences set out in subrule 18 (14).
[29] At trial, the mother took the position that the father’s parenting time should take place on alternate weekends and on alternate Wednesdays overnight.
[30] The parties resolved the holiday parenting schedule on consent.
[31] The court finds that although there was divided success on the parenting time issue, the mother was the more successful party.
Part Four – Factors in Determining the Amount of Costs
[32] The case was important to the parties. It was not complex or difficult.
[33] The mother acted reasonably in the case. She made a very reasonable offer to settle. The father should have accepted all but Part 2 of the offer.
[34] The father acted reasonably when he made a severable offer to settle.
[35] The father did not act reasonably by delaying the production of his financial disclosure. This resulted in multiple disclosure orders. The father also breached the case management judge’s order for page limits for his trial material.
[36] The rates and time claimed by counsel for the mother are very reasonable. The mother only claimed time for the trial step – not for any prior steps in the case. The mother’s bill of costs comes to $10,542.90. She is claiming 80% of this amount.
[37] The father claims that trial time was wasted because the mother unreasonably attempted to impute additional income to him. He is right that the imputation of additional income at trial sought by the mother was not awarded. However, if he had accepted the mother’s offer to settle, the trial on the support issues would have been unnecessary.
[38] The father’s costs claim for $8,000 is strong evidence of what he reasonably expected to pay in the event of lack of success in the litigation.
[39] The father claims that he does not have the financial means to pay the costs sought by the mother. However, the court finds that he has had a financial windfall due to his financial abuse of her. He is a homeowner. He travels frequently. Any hardship can be addressed with a payment order.
[40] The father sought an order that the costs be enforced through the Family Responsibility Office. It is usually the costs recipient who makes that request. The mother does not want that order to be made as she has executed an assignment that any recovered costs be paid to Legal Aid Ontario. In these circumstances, the court will not make that order.
Part Six – Conclusion
[41] Balancing all of these considerations, the father shall pay the mother’s costs fixed at $8,000, inclusive of fees, disbursements and HST.
[42] The father may pay these costs at the rate of $500 each month, starting on May 1, 2021. However, if he is more than 30 days late in making any costs, support arrears, or ongoing support payment, the entire amount of costs, then owing, shall immediately become due and payable.
[43] This costs order shall not be enforced through the Family Responsibility Office.
[44] The father’s costs claim is dismissed.
Released: April 1, 2021 _____________________ Justice S.B. Sherr