Akhter v. Ul Haq, 2024 ONCJ 17

DATE: January 12, 2024 COURT FILE NO.: D61854/13 ONTARIO COURT OF JUSTICE

B E T W E E N:

ANUM AKHTER, APPLICANT Kaulev Nandre, for the Applicant

• and –

FARHAN UL HAQ, RESPONDENT Amal Nayyar, for the Respondent

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On January 10, 2024, the court heard motions to change brought by the parties regarding the parenting time and child support arrangements for their 15-year-old son. The court also heard a motion brought by the applicant (the mother) to enforce the parenting time provisions contained in the April 21, 2017 order of Justice Debra Paulseth, as modified by the April 2, 2019 order of Justice Roselyn Zisman (the existing orders).

[2] The court delivered oral reasons for decision on the same day. It dismissed the mother’s motion to change and her enforcement motion. It granted the respondent’s (the father’s) motion to change the existing parenting time orders on the terms requested by him and increased the mother’s child support payments, retroactive to January 1, 2023.

[3] The parties made oral costs submissions the same day. The father sought costs of $8,857. He proposed that the costs be paid at $200 each month. The mother asked that no costs be ordered.

[4] The court reserved its decision on costs. This is its decision.

Part Two – General 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:

a) to partially indemnify successful litigants; b) to encourage settlement; c) to discourage and sanction inappropriate behaviour by litigants and; d) 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, 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.

Part Three – Success

[9] 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.

[10] 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. This assessment includes the positions taken in the pleadings, and the specific relief sought at the hearing, if different. See: Kyriacou v. Zikos, 2022 ONSC 401. The court may also take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson; Todor v. Todor, 2021 ONSC 3463; G.E. v. J.E., 2023 ONSC 1743; Kyriacou v. Zikos, supra.

[11] The father was completely successful in changing the existing parenting time orders and in having the mother’s enforcement motion dismissed. The parties agreed in submissions that these issues accounted for 80% of the legal work done on this case.

[12] The father was more successful than the mother on the support issues. The court dismissed her motion to retroactively reduce child support for a one-year period. It increased the mother’s child support payments retroactive to January 1, 2023. However, it did not increase it retroactive to October 1, 2019, as requested by the father.

[13] The mother did not rebut the presumption that the father is entitled to costs.

Part Four – Offers to settle

[14] 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.

[15] The father made one offer to settle that met the requirements set out in subrule 18 (4). The mother did not make an offer to settle.

[16] The father submitted that the costs consequences set out in subrule 18 (4) apply. The court disagrees.

[17] 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.

[18] 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).

[19] 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 4509.

[20] 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.

[21] 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.

[22] An offer to settle substantive terms which also includes a predetermination of costs perverts the subrule 18 (14) analysis, because the party ends up trying to claim credit for accurately predicting a costs determination a judge has not yet made. Subrule 18(14) contemplates full recovery for costs where all of the terms of an offer have been obtained in the trial judgment. An offer which includes costs obligations not yet determined by the court, cannot satisfy the strict requirements of this section. See: Chomos v. Hamilton, 2016 ONSC 6232; Hall v. Hall, 2019 ONSC 4198.

[23] The father’s offer was not severable and was vague. It proposed to change parenting time in accordance with the Voice of the Child Report that had just been ordered 5 days before. The clinician (the clinician) from the Office of the Children’s Lawyer had not even started the process. Further, parenting time recommendations are not made in Voice of the Child Reports.

[24] The father’s offer also set out full recovery costs consequences if it was not accepted by September 29, 2023 – essentially including a predetermination of costs. This created severe costs consequences for the mother when the clinician had not even started the Voice of the Child process. Lastly, the father did not even issue his motion to change until October 6, 2023 - one week after the full recovery costs consequences in his offer had activated.

[25] It was understandable that the mother did not accept the father’s offer in the form it was presented to her.

[26] The father should have made a severable offer to settle to the mother as directed by the court on December 11, 2023.

[27] The court considered the offer to settle pursuant to subrule 18 (16), and in assessing the reasonableness of the parties under sub-clause (iii) of subrule 24 (12) (a).

Part Five – The amount of costs

5.1 Legal considerations

[28] 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: b) each party’s behaviour, c) the time spent by each party, d) any written offers to settle including offers that do not meet the requirements of rule 18, e) any legal fees, including the number of lawyers and their rates, f) any expert witness fees, including the number of experts and their rates, g) any other expenses properly paid or payable; and h) any other relevant matter.

[29] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel. 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. 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.

[30] 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.

[31] 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.

5.2 Analysis

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

[33] The father generally acted reasonably, although he should have made a formal severable offer to settle, as directed by the court on December 11, 2023. That offer should have proposed a specific parenting time order.

[34] The mother acted unreasonably by failing to make an offer to settle, particularly after the court endorsed that it expected her to also make a severable offer to settle in its December 11, 2023 endorsement.

[35] The mother should have withdrawn her enforcement motion and settled the parenting time issues once she received the Voice of the Child Report.

[36] The mother also acted unreasonably by failing to provide complete disclosure of her 2023 income, as required. This added some time and expense to the case.

[37] The father is entitled to his costs for a wasted court appearance on December 11, 2023. The mother did not attend at court and the father was not notified in advance that an adjournment was being sought by her.

[38] The time and rates claimed by the father in his counsel’s bill of costs are reasonable.

[39] The mother has a limited ability to pay costs. The court assessed her annual income at $33,150. She supports two other children.

[40] The court finds that the mother should have reasonably expected to pay the costs that will be ordered. The court explained the costs consequences of proceeding to a hearing on December 11, 2023. Her counsel was present.

[41] The court will address the mother’s limited financial circumstances by permitting her to pay the costs over the next four years.

[42] The court will order the mother to pay the father’s costs fixed in the amount of $4,800, inclusive of fees, disbursements and HST, payable at $100 each month.

[43] The parties agreed that 20% of any costs order would be payable as support and enforced as an incident of support by the Director of the Family Responsibility Office pursuant to clause 1(1) (g) of the Family Responsibility and Support Arrears Enforcement Act.

Part Six – Conclusion

[44] An order shall go as follows:

a) The mother shall pay the father’s costs fixed in amount of $4,800, inclusive of fees, disbursements and HST. b) The mother may pay the costs at the rate of $100 each month, starting on February 1, 2024. However, if she is more than 30 days late in making any costs payment, or any ongoing or arrears support payments, the full amount of the costs then owing shall immediately become due and payable. c) $960 of this costs order is payable as support and shall be enforced as an incident of support by the Director of the Family Responsibility Office pursuant to clause 1(1) (g) of the Family Responsibility and Support Arrears Enforcement Act.

Released: January 12, 2024 Justice Stanley B. Sherr