DATE: March 16, 2022 COURT FILE NO. D10430/18

ONTARIO COURT OF JUSTICE

B E T W E E N:

TEODORA MARIA OPRIS

APPLICANT

• and -

MICHAEL JOHN McLAVERTY

RESPONDENT

COUNSEL: ASHLEY GELLER, for the APPLICANT IN DEFAULT, for the RESPONDENT

HEARD: IN CHAMBERS

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On February 15, 2022, the court heard an uncontested motion to change brought by the applicant to change the court’s order dated November 12, 2019.

[2] The court made several orders requested by the applicant. It granted her sole decision-making responsibility for the parties’ 7-year-old child. It ordered that the respondent’s parenting time was to be in the applicant’s discretion, with parenting orders made to address the respondent’s issues with alcohol abuse. It increased the child support payable by the respondent to the applicant to $381 each month and found that the respondent owed the applicant $1,138 for support.

[3] The court found that the applicant was entitled to her costs. The applicant sought a costs order of $7,000 at the hearing. Although the respondent had not responded to the motion to change, the court decided to give him an opportunity to respond to the costs claim. The court ordered that the applicant serve and file written submissions.

[4] The applicant served and filed her written submissions which included her bill of costs. She seeks her full recovery costs of $11,421.76. The respondent did not respond to these submissions.

Part Two – Legal considerations

[5] 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).

[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 (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.

[9] 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.

[10] 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: M.(C.A.) v. M.(D.), [2003] O.J. No. 3707; Scipione v Scipione, 2015 ONSC 5982, [2015] O.J. No. 5130 (supra). See: Jackson v. Mayerle, 2016 ONSC 1556.

[11] 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 – Analysis

[12] The applicant was the successful party in this case. The respondent did not rebut the presumption that she is entitled to her costs.

[13] The case was not complex or difficult. However, extra work was required by the applicant to establish a sufficient evidentiary basis to change a joint decision-making responsibility regime to a sole one to her and to change an extensive parenting time schedule to one with significant restrictions for the respondent due to his alcohol abuse and conduct towards her and the child.

[14] The applicant’s counsel did an excellent job in presenting the case.

[15] The applicant was also required to bring a Form 14B motion to permit her to travel with the child when the respondent unreasonably withheld his consent. The respondent did not contest that motion. The order requested by the applicant was granted.

[16] The applicant acted reasonably. The respondent attended at First Appearance Court. However, after that appearance he did not engage with the court process. He filed no financial disclosure nor an Answer/Claim. He did not attend at court on December 22, 2021, nor on February 15, 2022. He put the applicant to considerable expense to obtain the orders that were made. However, his behaviour fell well short of the high standard required to order full recovery costs.

[17] The time spent by the applicant, as reflected in her bill of costs, was on the high side for a matter of this nature.

[18] The hourly rate charged by the applicant’s counsel was reasonable. However, the rate charged by the applicant’s law clerk was almost as high as the lawyer’s and was excessive.

[19] No offers to settle were made. However, the applicant cannot be faulted for this as the respondent did not participate in the case and did not provide her with any financial disclosure.

[20] The respondent was aware of these proceedings. The applicant’s counsel advised the court that he reacted to the applicant’s costs submissions with hostility. The respondent is experienced in engaging with the court system. He should have reasonably expected to pay the costs that will be ordered.

[21] The respondent’s annual income was assessed at $42,000. His means are modest. The evidence indicated that he is also going through a difficult period, struggling with alcohol abuse. The court will address any hardship by giving the respondent the opportunity pay the costs that will be ordered over a reasonable period of time.

[22] Balancing all of these factors an order shall go as follows:

a) The respondent shall pay the applicant’s costs fixed at $6,000, inclusive of fees, disbursements and HST.

b) The respondent may pay these costs at the rate of $300 each month, starting on April 1, 2022. However, if he is more than 30 days late in making any costs payment, the entire amount then owing shall immediately become due and payable.

Released: March 16, 2022

Justice Stanley Sherr