DATE: January 17, 2022 COURT FILE NO. D30738/19

ONTARIO COURT OF JUSTICE

B E T W E E N:

MOHAMMED FIRUZ

APPLICANT

• and -

SHAFIQA SAID

RESPONDENT

COUNSEL: Jonathan Korman, for the Applicant Denise Badley, for the Respondent

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On November 30, 2021, the court gave oral reasons for decision regarding the applicant’s (the father’s) motion to increase his parenting time with the parties’ 3-year-old daughter. The court granted most of the relief sought by the father. The mother does not dispute that the father was the successful party on the motion.

[2] The court gave the father the opportunity to make written costs submissions and for the mother to make a written response. The father seeks his costs of the motion in the amount of $6,102. The mother asks that no costs be ordered.

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, 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 Subrule 18 (14)

[7] 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.

[8] 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 ONSC 4690.

[9] 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.

[10] 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.

2.3 Other Factors Affecting Costs Orders

[11] 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.

[12] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.). 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.

[13] 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.

[14] 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.

[15] 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. 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.

[16] 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 – The Father’s Offer

[17] The father made an offer to settle dated November 3, 2021. The mother did not make an offer to settle. At the hearing of the motion, the mother asked that the father’s parenting time be fully supervised by a professional parenting time supervisor.

[18] The father’s offer was more favourable to the mother than the motion result. He offered to have day parenting time with his daughter supervised by either his mother or sister, together with virtual visits. The court ordered a parenting time schedule that provided the father with gradual increases in parenting time. The schedule started with day visits, increasing in duration over three months, with overnight parenting time to begin in March 2022. The court ordered that only the first two visits needed to be supervised – by either the father’s mother or sister. Once overnight visits start, they are to take place at the home of either the father’s mother or sister.

[19] The father has met all the conditions contained in subrule 18 (14) for the costs consequences in that subrule to apply. The mother did not dispute that. The issue is whether the court should order otherwise as permitted in the subrule.

Part Four – Should the Court Order Otherwise?

[20] The mother asks that the court not apply the costs consequences in subrule 18 (14) because she does not have the ability to pay a costs order. She is on ODSP and has to support herself and the child. The father is also on ODSP and only pays the mother $90 each month for support. The mother has little ability to pay a costs award.

[21] Ordinarily, the mother’s circumstances would have a significant impact on the costs award. However, these circumstances must be balanced against the mother’s unreasonable behaviour. The court made the following findings on the motion:

a) The mother had not complied with the court’s previous orders for the father to have supervised parenting time with the child. b) The mother significantly delayed setting up the supervised parenting time with the professional parenting time supervisors and placed obstacles in the way for it starting. c) The mother arbitrarily cancelled visits with the parenting time supervisors with little or no notice to the father. The father had to pay the cancellation fees. d) The mother unilaterally stopped all visits after September 17, 2021 in contravention of the court order. e) The mother has obstructed the father from having a relationship with the child. f) The mother has failed in her responsibility as a parent to facilitate parenting time between the child and the father. The evidence indicates that she does not value the father’s relationship with the child.

[22] The mother also acted unreasonably by not making an offer to settle.

[23] The mother’s unreasonable behaviour is verging on being chronic. We are past the point where making a small costs order to change her behaviour will be effective.

[24] Given the extent of the mother’s unreasonable behaviour the court would be sending her and other like-minded litigants the wrong message by significantly reducing the costs order – a message that if you are impecunious, feel free to breach court orders and obstruct the other parent’s parenting time.

[25] The court will not fully apply the costs consequences set out in subrule 18 (14). However, the costs reduction will not be anywhere close to what it would have been if the mother had acted in a reasonable and child-focused manner.

Part Five – Amount of Costs

[26] The issue on the motion was important to the parties. It was not complex or difficult.

[27] The father acted reasonably on this motion. The mother did not.

[28] The court finds that the rates claimed by the father’s counsel of $275 per hour are too high for a first-year call to the bar. Further the rates charged for counsel’s law clerks ($225 per hour) and an articling student ($175 per hour) are much too high.

[29] The court finds the time spent by the father’s counsel on the matter to be reasonable. It also notes that he did very good work in presenting this motion. Some of the work charged for the law clerks in the father’s bill of costs appears to be secretarial in nature and the father should not be compensated for this.

[30] The mother will be ordered to pay the father costs of $3,000, inclusive of fees and HST. This is an amount that she should have reasonably expected to pay if the father’s offer to settle turned out to be more favourable to her than the motion result.

Part Six – Payment of the Costs Order

[31] The court will defer how the costs order is to be paid until the return of this matter on March 25, 2022.

[32] The court has choices available to it. It could suspend a portion of the costs order. It could order that the costs be paid over a long period of time. Or, it could order neither of those things.

[33] What order the court makes will depend to a large extent on how well the mother complies with the parenting time order. The father stated in his costs submissions that the mother has not complied with it. The mother still has time to correct her course. However, if she fails to do so, she should not expect generosity from this court.

Part Seven – The Order

[34] An order will go as follows:

a) The mother shall pay the father the sum of $3,000 for the costs of his motion, inclusive of fees and HST. b) The court will hear submissions from the parties regarding how the costs should be paid on the return date.

Released: January 17, 2022

Justice S.B. Sherr