CITATION: Mussa v. Imam, 2021 ONCJ 92
DATE: February 17, 2021
COURT FILE NO. D31305/19
ONTARIO COURT OF JUSTICE
B E T W E E N:
MUNA YASIN MUSSA
NILUFA HUSEIN, for the APPLICANT
APPLICANT
- and -
ABDELAZIZ KELIFA HAJI IMAM
VILMA RADFAR, for the RESPONDENT
RESPONDENT
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On January 28, 2021, the court heard a motion brought by the applicant (the mother) to strike the respondent’s (the father’s) Answer/Claim, due to his failure to pay child support, pursuant to a temporary court order dated December 9, 2019.
[2] The court gave oral reasons for decision that day. It ordered the father to pay the mother $3,000 by March 15, 2021 and $3,000 by April 15, 2021. The court further ordered that if the father failed to make either payment, his Answer/Claim would be struck, regarding the financial issues only. The court also ordered that, pursuant to subrule 1 (8) of the Family Law Rules (all references in this endorsement to rules are to the Family Law Rules), the father cannot proceed with any motion until he makes these payments.
[3] The mother was given permission to make written costs submissions. She seeks her costs of $7,561.65, inclusive of fees, disbursements and HST, to be paid within 30 days. The father asks that no costs be ordered.
Part Two – Legal considerations
[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).
[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.
[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). 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 23496 (ON SC), [2008] O.J. No. 1978 (SCJ).
[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:
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.
[10] The technical requirements of subrules 18 (4) and 18 (14) must be met to attract the costs consequences set out in subrule 18 (14). See: Sader v. Kekki, 2014 ONCJ 41; Jakubowski v. Kopacz-Jakubowski, [2008] O.J. No. 1442 (SCJ); Weber v. Weber, 2020 ONSC 6855. Subrule 18 (4) reads as follows:
OFFER TO BE SIGNED BY PARTY AND LAWYER
(4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any.
[11] In Sader v. Kekki, Justice Ellen Murray found that an offer to settle contained in a lawyer’s letter did not attract the costs consequences set out in subrule 18 (14), as it was not signed by both the lawyer and the client, as required by subrule 18 (4). She also found that draft unsigned minutes of settlement prepared by the lawyer did not comply with subrule 18 (4).
[12] Justice Murray further found that since these offers did not comply with subrule 18 (4) they were not rule 18 offers and could not be considered under subrule 18 (16) that reads as follows:[^1]
COSTS — DISCRETION OF COURT
(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
[13] However, with the latest amendments to the Family Law Rules[^2], such offers can now be considered when a court is exercising its discretion over costs pursuant to paragraph (iii) of clause 24 (12) (a) of the rules.
[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), 2003 18880 (ON CA), 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 20774 (Ont. SCJ pars. 7-13). Those who can least afford litigation should be the most motivated to avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3238.
Part Three – Do any of the offers to settle meet the technical requirements necessary to attract the costs consequences set out in subrule 18 (14)?
[16] The mother made two offers to settle the motion. Neither proposal met the technical requirements necessary to attract the costs consequences set out in subrule 18 (14).
[17] The mother’s first offer was dated January 16, 2021. It was contained in an email from the mother’s counsel to the father’s counsel. It was not signed by the mother. It did not meet the requirements for an offer set out in subrule 18 (4).
[18] The email sent by the mother’s counsel stated that the offer was being made pursuant to rules 18 and 24. However, just stating that an offer is being made pursuant to rule 18 doesn’t mean that it complies with subrule 18 (4).
[19] The second offer made by the mother was in the form of a draft consent. No one signed it. Again, it did not meet the requirements for an offer set out in subrule 18 (4).
[20] These forms of offers were almost identical to the offers addressed by Justice Murray in Sader v. Kekki, supra, when she found that they did not comply with subrule 18 (4).
[21] The father also made two offers – both contained in emails sent from his counsel to the mother’s counsel. The father did not sign either offer. They also did not meet the requirements for an offer set out in subrule 18 (4).
[22] The costs presumption set out in subrule 18 (14) can have significant repercussions – full recovery costs from the date of the offer. That is why full technical compliance with subrules 18 (4) and (14) is required.
Part Four – Success
[23] The mother asked for the father’s Answer/Claim to be struck on all issues. The court ordered that the father’s Answer/Claim would be struck, on the financial issues only, and only if specified payments towards his support arrears were not made.
[24] The father had asked for the motion to be dismissed.
[25] The mother wasn’t completely successful on her motion, but she was much more successful than the father. It is clear from the mother’s offer dated January 16, 2021 that her objective in bringing her motion was to have the father pay a significant portion of the support that he owed to her. The court, in its decision, set out a mechanism to incentivize the father to do this.
[26] The presumption that the mother is entitled to her costs was not rebutted by the father.
Part Five – The amount of costs
[27] This motion was important to the parties. It was not complex or difficult.
[28] The mother acted reasonably. She made efforts to resolve the father’s breach of the support order before bringing her motion. The court considered her offers pursuant to paragraph (iii) of clause 24 (12) (a) of the rules. The mother proposed on January 16, 2021 to resolve the motion by having the father pay her $3,000 immediately and having the balance of arrears paid to her at $100 each month. This would have been a better result for the father than the motion decision.
[29] The father should have accepted this offer. He should also have been paying child support. If he had done this in a responsible manner the mother would not have been put to the expense of bringing this motion.
[30] The father was not reasonable. He paid no support for over one year despite purchasing and financing a $60,000 vehicle in 2020. He preferred his own interests to those of the children, creating hardship for them and the mother during the pandemic. He only offered to pay an additional $100 each month towards his support arrears.
[31] The rates claimed by the mother for her counsel ($350 per hour) are reasonable for a lawyer of Ms. Husein’s skill and experience.
[32] The court finds that the time claimed for the motion is somewhat excessive. It was a very straightforward matter.
[33] 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.
[34] A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Smith Estate v. Rotstein, 2011 ONCA 491; Durbin v. Medina, 2012 ONSC 640; Zhang v. Guo, 2019 ONSC 5767 (Div. Ct.); Laidman v. Pasalic and Laidman, 2020 ONSC 7068.
[35] The father submitted a bill of costs for $4,633.
[36] The court considered the father’s ability to pay costs. The temporary support order is based on the father’s annual income of $33,000 – a modest income. However, the court has little sympathy for the father given his callous disregard of the court order and the impact of his failure to pay support on his children.
Part Five – Final order
[37] Taking into account all of these factors the father shall pay the mother’s costs of the motion fixed in the amount of $4,000, inclusive of fees, disbursements and HST.
[38] The matter returns to court on April 29, 2021 for a case conference on the remaining support and parenting time issues. The court will hear submissions on that day regarding payment of this costs order. The father will likely find the court to be much more receptive to a generous payment order, if, at that time, he is in substantial compliance with the support order.
Released: February 17, 2021
_____________________ Justice S.B. Sherr
[^1]: If the offer to settle complies with subrule 18 (4) but does not comply with the technical requirements of subrule 18 (14), the offer can still be considered under subrule 18 (16). See: Clancy v. Hansman, 2013 ONCJ 702; Ajiboye v. Ajiboye, 2019 ONCJ 894.
[^2]: These amendments came into effect on July 1, 2018.