Court File and Parties
DATE: October 4, 2022 COURT FILE NO. D42895/22
ONTARIO COURT OF JUSTICE
B E T W E E N:
JHANISA DYLAN REBUJIO, APPLICANT JOSEF-JAKE AGUILAR, for the APPLICANT
- and -
ROYCE JUSTIN ROSARIO, RESPONDENT GEORGE MARCOS GARVIDA, for the RESPONDENT
HEARD: In Chambers
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On September 2, 2022, the court delivered oral reasons after hearing cross-motions brought by the parties seeking temporary parenting orders regarding their four-year-old daughter (the child).
[2] The parties were given permission to make written costs submissions and did so.
[3] Both parties seek their full recovery costs. The applicant (the mother) seeks costs of $8,434.44. The respondent (the father) seeks costs of $9,856.23.
Part Two – Brief Background
[4] The parties cohabited from June 2017 until they separated in January 2022.
[5] The parties have the one child together.
[6] The mother moved in with her parents after the parties separated. The child primarily lived with her.
[7] The parties orally agreed that the father would have parenting time with the child each weekend. The father regularly exercised this parenting time.
[8] In the last week of April 2022, the mother moved with the child into her own residence. The father exercised his parenting time with the child during the weekend of May 1, 2022. He refused to return the child to the mother at the end of the weekend.
[9] The father then refused to give the mother any in-person parenting time.
[10] The mother’s previous counsel attempted to negotiate the return of the child to the mother. The father was non-responsive.
[11] The mother issued this application on July 19, 2022. On August 2, 2022, she was granted leave to bring an urgent motion for the return of the child.
[12] The father sought an adjournment of the urgent motion when it returned to court on August 8, 2022. The motion was adjourned on terms. The father was ordered to deliver the child to the mother the following day. The father complied with the order.
[13] The motions were heard on September 2, 2022. The court made multiple orders that included the following material terms:
a) The child shall have her primary residence with the mother.
b) The mother shall determine what school the child attends and register the child. She shall advise the father of the name and address of the school.
The father shall have parenting time with the child on three out of every four weekends, from Fridays at 6 p.m. until Sundays at 6 p.m., starting on September 9, 2022.
Part Three – General costs principles
[14] 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, O. Reg. 114/99 (all references to the rules in this decision are to the Family Law Rules).
[15] 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.
[16] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[17] 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.
Part Four – Who was the successful party?
4.1 Legal considerations
[18] 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).
[19] 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; Kyriacou v. Zikos, supra.
[20] Subrule 18 (4) sets out that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any.
[21] 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.
[22] 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).
[23] Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[24] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.
[25] Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (SCJ); Mondino v. Mondino, 2014 ONSC 1102.
4.2 Analysis
[26] Neither party made a sub rule 18 (4) offer to settle the motions. Accordingly, the costs consequences set out in subrule 18 (14) do not apply.
[27] The mother’s previous lawyer sent correspondence proposing settlement to the father just prior to and just after the father overheld the child on the May 1, 2022 weekend. The first offer was non-severable and included property and support terms. It was not of much assistance to the court in determining costs for these motions.
[28] The second offer, dated May 5, 2022, proposed a temporary, equal-time shared parenting plan. The father did not respond to this proposal. If he had accepted it, these motions could have been avoided and the father would have obtained a better result than he obtained on the motions.
[29] However, the mother changed her position once she started this case. She sought an order asking that the father’s parenting time initially be supervised. At the hearing of the motions, she changed her position again and did not seek an order for supervision. However, she had not made any further offer to settle the motions and the father had prepared to contest the mother’s request for supervision.
[30] The dominant issues on the motions were about where the child would live and go to school. The mother was the successful party on these issues.
[31] The father did not make an alternative claim for parenting time in his cross-motion. His cross-motion was dismissed. However, the mother was unsuccessful in restricting the father to supervised parenting time, as she had requested in her notice of motion.
[32] Although there was some divided success on the motions, the mother was the more successful party and is presumptively entitled to costs. The father did not rebut that presumption.
Part Five – Bad faith and unreasonable behaviour
5.1 Legal considerations
[33] Subrule 24 (8) states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
[34] Subrule 24 (8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).
[35] There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S.(C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. SCJ).
[36] 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. See: Scipione, supra.
[37] Subrule 24 (5) provides some criteria for determining the reasonableness of a party’s behaviour in a case. 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.
[38] Being unsuccessful does not equate necessarily to being unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302; W.H.C. v. W.C.M.C., 2021 ONCJ 363.
5.2 Analysis
[39] The father submitted that the mother acted unreasonably by starting litigation instead of continuing negotiation. This submission has no merit. His actions left her little choice other than to pursue a court remedy.
[40] The court seriously considered making a finding that the father acted in bad faith by overholding the child and denying the mother in-person parenting time with the child. In its oral reasons, the court stated that it appeared that the father was jealous because the mother may have been moving into a residence with another man.
[41] However, at this preliminary stage of the case the court will exercise caution before making a finding of bad faith. The evidence has not been fully tested and parenting concerns about the mother were raised not only by the father, but by the maternal grandparents. It is possible that the father had an honestly held belief that he was protecting the child and acting in her best interests. Even if his actions were misguided, this would make the conduct unreasonable, but not in bad faith.
[42] The court finds that the father acted unreasonably by:
a) Overholding the child, contrary to the parties’ temporary oral parenting arrangements.
b) Failing to provide the mother with any in-person parenting time for three months.
c) Acting in an arbitrary and controlling manner.
d) Not responding to the letters from the mother’s previous counsel.
e) Not making an offer to settle.
[43] The mother also acted unreasonably by not making an offer to settle once she started this case.
Part Six – Other costs considerations and the amount of costs
6.1 Further legal considerations
[44] 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.
[45] 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.
[46] 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.).
6.2 Analysis
[47] This case was important to the parties. It was not complex or difficult.
[48] The time claimed by the mother’s counsel is reasonable.
[49] The rates claimed by the mother’s counsel are excessive. He is a 2016 Call to the Bar and is claiming an hourly rate of $500. He is also claiming an hourly rate of $200 for his law clerk. Both rates are too high.
[50] The disbursements claimed by the mother for process server fees ($609.19) are reasonable.
[51] The mother did not include HST on her bill of costs. This should be added to the costs determination.
[52] The father works full time for the TTC. He will be able to afford the costs that will be ordered.
[53] The father should have reasonably expected, if he was unsuccessful, to pay the costs that will be ordered.
[54] The court finds it reasonable and proportionate in these circumstances to order as follows:
a) The father shall pay the mother costs of $5,000 for these motions. This is inclusive of fees, disbursements and HST.
b) The father shall pay the mother these costs within 30 days.
c) The father’s request for costs is dismissed.
Released: October 4, 2022
Justice S.B. Sherr
