R.S. v. M.S.M., 2023 ONCJ 120

CITATION: R.S. v. M.S.M., 2023 ONCJ 120

DATE: March 15, 2023

COURT FILE NO. D81475/15

ONTARIO COURT OF JUSTICE

B E T W E E N:

R.S.

LAUREN ISRAEL, for the APPLICANT (RESPONDING PARTY ON MOTION TO CHANGE)

APPLICANT

• and -

M.S.M.

MURAD ALI KHAN, for the RESPONDENT (MOVING PARTY ON MOTION TO CHANGE)

RESPONDENT

HEARD: MARCH 14, 2023

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On March 14, 2023, the court heard the respondent’s (the father’s) motion to change parenting terms contained in the court’s order dated March 24, 2017 (the existing order). The court delivered oral reasons at the conclusion of the motion. It dismissed the father’s motion to change, finding that he had not met his onus of establishing that there had been a material change in circumstances that affects or is likely to affect the parties’ child in the future.

[2] The applicant (the mother) seeks her costs of the motion to change in the amount of $4,000, payable immediately, or in the alternative at $400 each month.

[3] The mother also seeks an order that the father must first obtain leave of the court before starting another motion to change the parenting terms in the existing order.

[4] The father acknowledges that the mother was the successful party on the motion to change and that she is entitled to costs. He proposed paying her costs of $1,500, payable at $100 each month.

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.

[11] 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.). 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.

Part Three – Analysis

[12] This case was important to the parties. It was not complex or difficult.

[13] The parties both acted reasonably on the motion to change. They agreed to a summary process to determine the threshold issue of whether there had been a material change in circumstances that affects or is likely to affect the child in the future, by having this issue argued based on affidavits and submissions.

[14] The issue regarding whether there had been a material change in circumstances was binary. This was not a case where offers to settle were required to assess reasonableness.

[15] The rates claimed by the mother’s counsel ($450 each hour) are reasonable for a 1993 call to the bar.

[16] The time claimed by the mother is reasonable and proportionate.

[17] The disbursements claimed by the mother are reasonable.

[18] The mother’s bill of costs totals $5,098. This did not include her time for the March 14, 2023 appearance to argue the motion to change. Her claim for $4,000 costs is reasonable and proportionate and what the father should have reasonably expected to pay if he was unsuccessful.

[19] The court will consider the father’s financial circumstances in determining how the costs are paid. The father has limited means. He may pay the costs at $200 each month, starting on April 1, 2023. However, if he is more than 30 days late in making any payment, the entire amount of costs then owing shall immediately become due and payable.

Part Four – Request that father require leave prior to starting a motion to change the parenting terms in the existing order

[20] Subrule 14 (21) provides the court with authority to require a party to first obtain permission before making any other motions in the case. It reads as follows:

No motions without court’s permission

14(21) If a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission.

[21] This is the second time that the court has dismissed a motion to change the parenting terms in the existing order based on the father failing to establish the requisite material change in circumstances. The court finds that this is close, but not quite enough to apply the subrule 14 (21) remedy for the following reasons:

a) Courts should exercise this authority cautiously when dealing with parenting issues. See: Rodriguez v. Vella, 2022 ONCA 870.

b) The father has not delayed the case. He worked cooperatively with the mother and the court to have a summary process to determine this issue.

c) The father is not abusing the court process.

d) The two unsuccessful motions don’t constitute “numerous motions” as set out in the subrule.

[22] The court finds that this costs order is the appropriate remedy for the father bringing a motion to change that lacked merit.

Part Four – Conclusion

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

a) The father shall pay the mother’s costs fixed in the amount of $4,000, inclusive of fees, disbursements and HST.

b) The father may pay the costs at $200 each month, starting on April 1, 2023. However, if he is more than 30 days late in making any payment, the entire amount of costs then owing shall immediately become due and payable.

Released: March 15, 2023

Justice Stanley B. Sherr