Date: June 14, 2021 Court File No.: D40753/20
ONTARIO COURT OF JUSTICE
Between:
F.B. Applicant
Counsel for Applicant: Ayesha Hussain
And:
C.H. Respondent
Counsel for Respondent: Natalia Denchik
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] On May 13, 2021 the court released its endorsement on the applicant’s (the mother’s) motion for temporary parenting orders regarding the parties’ 4-year old child (the child). See: F.B. v. C.H., 2021 ONCJ 275.
[2] The court endorsed that any party seeking costs had until May 27, 2021 to serve and file their written submissions. The other party then had until June 10, 2021 to serve and file their written response – not to make their own costs request.
[3] The mother served and filed her costs submissions on time. She seeks her costs of $2,260.
[4] The respondent (the father) did not make a costs request by the May 25, 2021 deadline. He did not file a Form 14B motion seeking an extension of time to do this.
[5] The father also did not file his responding costs submissions by the June 10, 2021 deadline. He did not file a Form 14B motion seeking an extension of time to do this.
[6] As a courtesy to counsel for the father, court staff contacted her to remind her to make her submissions on June 11, 2021.
[7] The father filed his costs submissions on June 11, 2021. Contrary to the court’s endorsement, he now seeks his own costs of the motion of $2,500. He did not file a Form 14B motion seeking an extension of time to do this.
[8] Given these breaches of the court’s order, the court will not consider the father’s costs claim and will treat his submissions as a request to dismiss the mother’s costs claim.
Part Two – Legal considerations
[9] 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).
[10] 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.
[11] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[12] 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.
[13] 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).
[14] To determine whether a party has been successful, the court should examine who was the successful party, based on the positions taken in the litigation. See: Lazare v. Heitner, 2018 ONSC 4861. The court may also take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ); Todor v. Todor, 2021 ONSC 3463.
[15] Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[16] 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.
[17] 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.
[18] 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.
[19] 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).
[20] 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.
[21] 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.
[22] 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).
[23] 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.
[24] Subrule 24 (5) provides some criteria for determining the reasonableness of a party’s behaviour in a case. 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.
[25] 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.
[26] 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.). 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 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 – Entitlement to costs
[27] The court finds that the mother was the successful party on the motion.
[28] The mother was granted temporary decision-making responsibility for the child. She was required to consult with the father prior to making a major decision – a term that she did not propose on the motion. The father had sought shared decision-making responsibility for the child.
[29] The mother sought an order that the father have temporary parenting time for full days on Saturdays and Sundays on alternate weekends. The father sought an equal parenting time order. The court ordered day parenting time to the father as sought by the mother, to increase to overnight parenting time for one overnight on alternate weekends, starting on July 3, 2021, increasing to two overnights on alternate weekends starting on August 27, 2021. The court ordered many of the terms and conditions for parenting time sought by the mother, such as the father being required to transport the child for parenting exchanges, that the father not consume alcohol while exercising his parenting time, that the father follow her medical direction for the child and follow the child’s sleep routines as set out by her and that the father not smoke in the presence of the child or smoke indoors when he is exercising his parenting time.
[30] Although there was some divided success on the parenting time issues, the mother was much more successful than the father.
[31] Both parties made offers to settle. Neither offer was more favourable to the other party than the motion result and did not attract the costs consequences set out in subrule 18 (14). The offers were close to the positions taken on the motions.
[32] The presumption that the mother is entitled to costs was not rebutted.
Part Four – Amount of costs
[33] The parenting issues were important to the parties. They were not complex or difficult.
[34] The father claims that the mother did not act reasonably. The court finds that she has acted reasonably and that she has taken reasonable positions.
[35] The father acted reasonably by making an offer to settle. However, he did not act reasonably by continually changing his position on the motion (as described in the motion endorsement). This increased the costs to the mother to respond to these positions. He also acted unreasonably by failing to comply with the timelines for these submissions and the court’s direction not to make his own costs submissions in his response to the mother’s costs submissions.
[36] Even if the court had decided to consider the father’s claim it would have been dismissed as having no merit.
[37] The court finds that the time and rates claimed by the mother are very reasonable and proportionate. The mother also acted reasonably by not claiming any disbursements. The father is very fortunate that the mother did not seek a higher amount for costs.
[38] The costs claimed by the mother are costs that the father reasonably should have expected to pay to the mother if he was unsuccessful. It is noteworthy that his counsel’s bill of costs and costs claim was higher than the mother’s.
[39] The court has considered that the father has limited means. However, he took a position on this motion that had little chance of success and created unnecessary cost to the mother. The court will address his financial limitations by permitting him to pay this costs order over an extended period of time.
Part Five – Final order
[40] The father shall pay the mother’s costs of the motion fixed in the amount of $2,000, inclusive of fees, disbursements and HST.
[41] The father may pay the costs at $200 each month, starting on July 1, 2021.
Released: June 14, 2021 _____________________ Justice S.B. Sherr
