DATE : July 21, 2021 COURT FILE NO. D30421/19

ONTARIO COURT OF JUSTICE

B E T W E E N:

SUE SUVANIE HARRY

MEAGHAN PARTRICK, for the APPLICANT

APPLICANT

- and -

HEADLEY MOORE

ACTING IN PERSON

RESPONDENT

HEARD: In Chambers

JUSTICE S.B. SHERR

Costs Endorsement

Part One – Introduction

[1] On June 17, 2021 the court released its reasons for decision arising out of a trial that was about the parenting and support arrangements for the parties’ two-year-old son. See: Harry v. Moore, 2021 ONCJ 341.

[2] The court provided the parties with the opportunity to make written costs submissions. The applicant (the mother) seeks her costs of $8,503. The respondent (the father) did not make submissions.

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, 2003 S.C.C. 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).

[8] 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.

2.3 Offers to Settle

[9] 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:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. 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.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[10] 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).

[11] 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).

[12] 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.

[13] 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

[14] 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.

[15] 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.). 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.

[16] 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.

[17] 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.

[18] 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)

[19] The mother made an offer to settle dated April 19, 2021. The father did not make an offer to settle.

[20] The mother’s offer to settle was reasonable, but it did not meet all the conditions required for the costs consequences set out in subrule 18 (14) to apply. The offer was not more favourable to the father than the trial result.

[21] The mother based her child support offer on imputing annual income of $52,884 to the father. The court imputed annual income to the father of $50,000 – reducing it to $42,000 for the period from April 1, 2020 to June 30, 2021.

[22] The mother’s offer to settle the parenting terms was close to the final order, with one significant exception. The mother made an offer that in the event that a deportation order was to be executed against her, she could bring an emergency motion to the court on 48-hours-notice to seek an order for relocation of the child and change the order for the father’s parenting time. The court did not make that order. The court also ordered slightly more parenting time for the father than offered by the mother.

Part Four – Success

[23] The mother’s position at trial was essentially the same as that set out in her offer to settle. She sought an order for sole decision-making responsibility and primary residence of the child. She asked that the father have parenting time with the child on alternate weekends and that he be responsible for transporting the child on parenting exchanges. She asked for an order that the father be prohibited from removing the child from Canada without her prior written consent or prior court order. She also asked for permission to obtain or renew government documentation for the child and be permitted to travel with the child outside of Canada, for vacation purposes, without the father’s consent.

[24] The father sought parenting orders for joint decision-making responsibility and for equal-parenting time with the child. He opposed the mother’s requests to dispense with his consent regarding the child’s government documentation or for her to travel with the child outside of Canada. He sought an order prohibiting the mother from removing the child from Canada without his prior written consent or further court order. He asked that his child support obligation be fixed at $74.13 a month, from the child’s date of birth, based on his gross annual income of $14,737, with credit for support payments he had made since then.

[25] The mother was overwhelmingly successful at trial. The court granted the orders she sought regarding:

a) Sole decision-making responsibility for the child.

b) Primary residence of the child.

c) The parenting time schedule with modest changes.

d) Dispensing with the father’s consent to obtain government documentation for the child and to travel outside of Canada with the child for vacation purposes.

e) Prohibiting the father from removing the child from Canada without her prior consent or prior court order.

f) Transportation responsibility for parenting exchanges.

[26] The mother was far more successful at trial than the father on the support issues.

[27] The only issue where the mother was unsuccessful was regarding her ability to bring an emergency motion to relocate the child in the event a deportation notice was to be executed against her. The court found her request to be premature.

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

Part Five – Determining the Amount of Costs and Order

[29] This case was very important for the parties. It was not complex. The support issue was made more difficult due to the father’s failure to provide complete or timely financial disclosure. The mother had to spend additional time providing evidence of the father’s lifestyle which resulted in the imputation of additional income to him.

[30] The mother acted reasonably in the case. She made a reasonable offer to settle.

[31] The father did not act reasonably. He had three costs orders made against him in these proceedings due to his unreasonable behaviour. Costs remain unpaid. He failed to comply with timelines for filing court material throughout this case. At trial, he still had not complied with the order to provide disclosure of his 2020 and 2021 income. He disrupted the temporary parenting time order made by the case management judge by getting into a dispute with the professional supervised parenting time supervisor and getting rejected from this service during its intake process.

[32] The positions taken by the father at trial were unrealistic and lacked merit.

[33] The rates and time claimed by the mother were very reasonable.

[34] The father was attuned to costs consequences due to three previous costs orders made against him. He should have expected to pay costs in the range sought by the mother if he was unsuccessful at trial.

[35] The father has the ability to pay this costs order.

[36] An order will go that the father shall pay the mother’s costs in the amount of $7,200 inclusive of fees, disbursements and HST. The costs are due and payable in 30 days.

Released: July 21, 2021

_____________________ Justice S.B. Sherr