Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2021 11 18 COURT FILE No.: Toronto D31040/19
BETWEEN:
Sylvester Schmidt Applicant (Father)
— AND —
Shazie Mascoe Respondent (Mother)
Before Justice Robert J. Spence
Endorsement on Costs following Written Submissions
Released: November 18, 2021
Counsel: Applicant father ......................................................................................................... in person Ms. Roma Mungol....................................................... counsel for the respondent mother
R. J. SPENCE J.:
1: Introduction
[1] Following a trial held on November 8, 2021, I gave the mother leave to file costs submissions. The mother did so.
[2] The mother seeks costs on a full recovery basis in the amount of $4,825, inclusive of disbursements and H.S.T. In the alternative, she seeks costs on a partial recovery basis, in the amount of $4,135.
[3] The father responded with an email in which he informally set out his position. Despite the informality of the father’s email, I take from its content that he is opposed to any costs order, regardless of the amount.
2: Legal Considerations
2.1 General principles
[4] The case of Mattina v. Mattina, 2018 ONCA 867 sets out the following fundamental purposes of modern costs rules:
(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] At paragraph 15 of Mattina, the Court of Appeal stated [my emphasis]:
[15] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).
[6] The Court of Appeal in Beaver v. Hill, 2018 ONCA 840 emphasized the importance of reasonableness and proportionality, in the exercise of the court’s discretion in awarding costs.
[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.
[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 ONSC 22584, [2000] O.J. No. 330 (SCJ- Family Court). To determine whether a party has been successful, the court should consider how the order compares to any settlement offers that were made. See: Lawson v. Lawson, 2008 ONSC 23496, [2008] O.J. No. 1978 (SCJ).
[9] Subrule 24(6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
2.2 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 [my emphasis]:
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. [1]
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, subrule 18(16) provides that 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.
[12] The onus of proving that the offer is as good as, or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz, 2014 ONSC 4609.
[13] The technical requirements of subrule 18(14) must be met to attract the costs consequences that subrule. See: Ajiboye v. Ajiboye, 2019 ONCJ 894.
2.3 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] Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(12)(a)(i) above). 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.
[16] Family law litigants are responsible for, and accountable for, the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.
[17] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 2003 ONCA 18880, 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, 2007 ONSC 20774 pars. 7-13.
[18] 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.
3: Analysis
[19] The trial was about father’s parenting time to the parents’ five year-old daughter. The court made a final parenting order in favour of the father which, for the most part, reflected what the mother had been seeking. The mother was the successful party and presumptively, she is entitled to her costs pursuant to subrule 24(1).
[20] The court finds no reason to displace this presumption of an entitlement to costs.
[21] I will consider the mother’s request for costs on a full recovery basis.
[22] The court can award full recovery of costs if any of the three findings are made as set out at paragraph 15 of Mattina.
[23] I turn first to whether mother beat her offer to settle pursuant to subrule 18(14).
[24] The mother served three offers to settle, on September 23, 2021, November 3, 2021 and November 5, 2021.
[25] The only offer which falls strictly within subrule 18(14), namely, the requirement that the offer be served at least seven days before the trial, is the offer dated September 23, 2021.
[26] I do not find it necessary to compare the details of that offer with the detailed order the court made following trial, save to note that the mother’s offer, while it reflected much of what the court ordered, was not a better offer than what the court ordered at trial. The mother acknowledged this in her costs submissions.
[27] Accordingly, following paragraph 15 of Mattina, the court cannot award full recovery of costs on the basis of the offer to settle.
[28] I turn next to consider whether the father acted in bad faith, as submitted by the mother.
[29] The bar for a finding of bad faith is high.
[30] A finding of bad faith requires a court to conclude there was some element of malice or intent to harm. See: Stewart v. McKeown, 2012 ONCJ 644 and Harrison v. Harrison, 2015 ONSC 2002.
[31] In Jackson v. Mayerle, 2016 ONSC 1556, Justice Alex Pazaratz stated at paragraph 58 [my emphasis]:
Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle, 2005 ONSC 7660; Leonardo v. Meloche, 2003 ONSC 74500; [2003] O.J. No. 1969 (SCJ); Hendry v. Martins, 2001 ONSC 28099
[32] The court adopts the highlighted portion of Justice Pazaratz’s statements in Jackson.
[33] There is nothing on the facts of the present case which would allow the court to conclude that father behaved in such a way as discussed in Jackson. The court does not find that the father acted in bad faith.
[34] Finally, I turn to whether the father acted unreasonably. The mother submits that unreasonable conduct for the father can be found by the father’s failure to make any offers to settle, and the father’s failure to make any real attempt to settle the matter without going to trial.
[35] A litigant who simply digs in his heels and acts intransigently, refusing all reasonable attempts made by the opposite party to settle the case, can be found by a court to have acted unreasonably and therefore liable to pay costs on a full recovery basis. The court cannot overstate the principle in Heuss, namely, that litigants need to be responsible for, and accountable for, the positions they take in the litigation.
[36] The mother did serve three offers to settle. The father did not serve any formal offers to settle. However, it appears from his submission that he did contact mother’s counsel, more than once, after counsel sent him the first offer to settle.
[37] The father was self-represented in the months leading up to the trial. He was not the kind of self-represented litigant who makes a good living and simply decides that he will do a better job than a lawyer and therefore chooses to represent himself.
[38] The father is an unsophisticated, average income-earning parent who made at least some efforts to come to a resolution. Would counsel have done a more effective job on his behalf? Without a doubt. However, I would not categorize the father as stubborn or intransigent, as someone who simply ignored attempts to settle the case, as someone who took the position, in effect, saying it’s my way or the highway.
[39] I do not conclude that father engaged in unreasonable conduct of the kind that should give rise to an award of costs on a full recovery basis.
[40] And because mother does not fall within any of the three categories set out in Mattina, supra, for a full recovery costs order, the court will not make that order.
[41] In deciding the amount of costs, the court turns to the factors set out in subrule 24(12).
[42] As Beaver makes clear, the factors in subrule 24(12) must be assessed in accordance with the reasonableness and proportionality of the costs as they relate to the importance and complexity of the issues in dispute.
[43] I start by noting that this was a one-issue trial, namely, how much parenting time the court should order for the father and the details of that parenting time. While that issue was certainly important to both parents, it was not legally or factually complex.
[44] I reviewed the Bill of Costs submitted by the mother’s counsel. Her 12.2 hours of total time spent is reasonable. Her rate of $300 per hour for a solicitor of 14 years’ experience is also reasonable. Her total account in the amount of $4,825, inclusive of H.S.T. is reasonable.
[45] It is clear from the three offers that mother sent to father, that she was genuinely attempting to settle the case. All the offers were reasonable.
[46] The father had not seen the parties’ five-year-old child between March 8, 2021 and October 2021. Prior to those dates, the father had been missing scheduled visits and appearing at the child’s school for unscheduled visits. Because of this, there was some urgency to decide his parenting time. The mother understandably wanted a fixed schedule that both she and the father could follow.
[47] Regrettably, the mother was forced to incur legal fees on this parenting issue because none of her reasonable attempts to settle bore fruit.
[48] Having considered all of the factors in subrule 24(12), the court concludes that costs in the amount of $4,300, all inclusive is a reasonable and proportionate award to make.
[49] The father shall pay costs to the mother in the amount of $4,300 within 60 days from the date of this order.
[50] Order accordingly.
Released: November 18, 2021 Justice Robert J. Spence (Signed electronically)
[1] I have highlighted this paragraph for reasons referred to later in this endorsement.