Court File and Parties

Date: October 31, 2022 Court File No.: D42123/21 Ontario Court of Justice

Between:

TAMEKA LEWIS PAMILA BHARDWAJ, for the APPLICANT APPLICANT

- and -

ORLANDO WILLIS ACTING IN PERSON RESPONDENT

Heard: In Chambers

Justice S.B. Sherr

Costs Endorsement

Part One – Introduction

[1] On September 16, 2022, the court released its reasons for decision arising out of an undefended trial about child support. See: Lewis v. Willis, 2022 ONCJ 421.

[2] The court found that the applicant (the mother) was the successful party and gave her the opportunity to make written costs submissions.

[3] The mother seeks costs of $14,543.

[4] The respondent (the father) was given the opportunity to make responding costs submissions but did not do so.

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 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.

[7] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[8] 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.

[9] 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.

[10] 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

[11] This case was important for the parties. The court made final parenting orders sought by the mother on July 13, 2022. At the hearing held on September 13, 2022, the court imputed the father’s annual income at $42,000 and determined that he owed the mother support arrears of $14,779.

[12] The case was not complex or difficult.

[13] The mother acted reasonably in the case.

[14] The father did not act reasonably. He did not file an Answer/Claim despite being given multiple extensions to do so. He was eventually found in default. He provided no financial disclosure to the mother or to the court. This conduct created unnecessary costs for the mother.

[15] The rate of $450 per hour claimed by the mother’s counsel (who is a 1994 call to the bar) is reasonable.

[16] The disbursements of $79.00 claimed by the mother are reasonable.

[17] The court finds that the time claimed by the mother is not proportionate to the issues.

[18] There were three short virtual attendances at First Appearance Court. The mother filed a Form 23C for a default hearing that was addressed at a short court appearance on July 13, 2022. The father attended and did not dispute the final parenting orders sought. A temporary child support order was made and the father was given a final extension to file an Answer and financial statement on the support issues. The court observed that the mother’s Form 23C did not adequately address the retroactive support framework set out in Colucci v. Colucci, 2021 SCC 24 and permitted her to serve and file a supplementary affidavit.

[19] The mother served and filed the supplementary affidavit. The father did not file an Answer or a financial statement and the undefended trial took place on September 13, 2022. The father was permitted to make submissions. He opposed the orders sought by the mother and was unsuccessful.

[20] The court considered the father’s financial circumstances in making this order. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). He earns a modest income. However, 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.

[21] The father should have expected to pay costs approaching the range that will be ordered by the court. The court will permit him to pay the costs over a reasonable time period.

Part Four – Order

[22] An order shall go on the following terms:

a) The father shall pay the mother’s costs fixed at $8,500, inclusive of fees, disbursements and HST.

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

Released: October 31, 2022

Justice Stanley B. Sherr