Q.M.S.Q. v. S.Q., 2021 ONCJ 381
DATE: July 19, 2021
COURT FILE NO.: D10317/18
ONTARIO COURT OF JUSTICE
B E T W E E N:
Q.M.S.Q.
ACTING IN PERSON
APPLICANT
- and -
S.Q.
RICHARD TEICHER, and MYLES GOODMAN-VINCENT, law student, for the RESPONDENT
RESPONDENT
HEARD: In Chambers
BEFORE: JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On June 14, 2021 the court released its reasons for decision arising out of a trial that was mainly about the applicant’s (the father’s) parenting time with respect to the parties’ two children and the respondent’s (the mother’s) request for a restraining order against the father. See: Q.M.S.Q. v. S.Q., 2021 ONCJ 334.
[2] The court made the restraining order sought by the mother and limited the father’s parenting time with the children to communicating with them through an email account set up and monitored by the mother.
[3] The court provided the parties with the opportunity to make written costs submissions. The mother seeks her costs of $7,359. The father submits that he cannot afford to pay any costs at this time. He said that he was prepared to start paying any amount the court decided was fair once he returned to work.
Part Two – Legal considerations
2.1 General principles
[4] 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).
[5] 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, 2003 S.C.C. 71, paragraph 25.
[6] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[7] 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
[8] 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 22584 (ON SC), [2000] O.J. No. 330 (SCJ-Family Court).
[9] 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 23496 (ON SC), [2008] O.J. No. 1978 (SCJ); Todor v. Todor, 2021 ONSC 3463.
2.3 Offers to settle
[10] 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.
[11] 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).
[12] 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).
[13] 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.
[14] 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
[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 (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but not are always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787. 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. Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably. See: G.W.S. v. C.S., 2018 ONCJ 378.
[17] 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.
[18] The rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v Slongo, 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: Jackson v. Mayerle, 2016 ONSC 1556.
[19] 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.
Part Three – Subrule 18 (14)
[20] Both parties made multiple offers to settle.
[21] The mother made four offers to settle. Her first offer was dated March 8, 2021. Each of her offers met the required conditions set out in subrule 18 (14) for the costs consequences to apply.
[22] The mother only seeks costs from April 12, 2021. This is after she made her first offer to settle. Accordingly, the costs consequences set out in subrule 18 (14) apply to the entirety of her costs claim. She is presumed to be entitled to full recovery costs.
[23] The father also made four offers to settle. None of these offers came close to being more favourable to the mother than the trial result. In his offers to settle, the father sought generous, unsupervised parenting time with the children. He opposed the mother’s claims for a restraining order, to obtain government documentation for the children without his consent and to travel outside of Canada with the children for vacation purposes without his consent. He took similar positions at trial.
[24] The father was unsuccessful on each of these issues. The mother was completely successful.
[25] The presumption that the mother is entitled to her full recovery costs as set out in subrule 18 (14) was not rebutted by the father.
Part Four – Determining the amount of costs and order
[26] This case was very important for the parties. It was not complex or difficult.
[27] The mother acted reasonably in the case.
[28] The positions taken by the father in his offers to settle and at trial were unrealistic and lacked merit.
[29] The mother was represented by a staff lawyer and law students from Downtown Legal Services. This is a Legal Aid clinic. The time and rates claimed by the mother were reasonable and proportionate. The hourly rate claimed by the supervising lawyer for the mother ($360 per hour) was reasonable. See: Jackson v. Bobbie, 2018 ONCJ 104. The hourly rate claimed for the law students who worked on the file for the mother ($39.60 per hour) was also reasonable and consistent with the rates allowed in Jackson v. Bobbie, supra and in Ganie v. Ganie, 2015 ONSC 2991.
[30] The minor disbursements claimed by the mother were also reasonable.
[31] Costs of $2,250 had already been ordered against the father by Justice Carolyn Jones, arising out of a temporary motion. The father should have expected to pay the costs sought by the mother if he was unsuccessful at trial.
[32] The court considered that the father has limited financial circumstances. He has been in receipt of Ontario Disability Support payments. His return to the workforce remains uncertain. The father should have considered his financial situation before taking unreasonable positions in this case. The court will address this factor by permitting the father to pay costs over time – provided that he keeps his support payments and costs payments in good standing. He is to advise the mother if he returns to the workforce. She may then move to the court to increase the monthly costs payments.
[33] An order will go on the following terms:
a) The father shall pay the mother’s costs in the amount of $7,359, inclusive of fees, disbursements and HST.
b) The father may pay these costs at $100 each month, starting on August 1, 2021. However, if he is more than 30 days in default of making any costs payment or any support payment, the entire amount of costs then owing, shall immediately become due and payable.
c) The father is to immediately advise the mother if he obtains employment and provide her with the name and address of his employer, his work hours, his rate of pay and copies of his first three pay cheques. The mother may then bring a motion to increase the monthly costs payments, on notice to the father. This issue will be determined in a summary manner.
Released: July 19, 2021
_____________________ Justice S.B. Sherr