Court File and Parties

Date: April 26, 2024 Court File No.: D44312/23

ONTARIO COURT OF JUSTICE

B E T W E E N:

J.W. ACTING IN PERSON APPLICANT

- and -

C.W. LISA A. JOHNSON, for the RESPONDENT RESPONDENT

HEARD: IN CHAMBERS JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On March 26, 2024, the court released its decision regarding the parties’ motions for temporary parenting, support and communication orders relating to their five-year old son. See: J.W. v. C.W., 2024 ONCJ 159.

[2] The court granted the respondent’s (the mother’s) motion and dismissed the applicant’s (the father’s) oral motion.

[3] The court found that the mother was the successful party and entitled to her costs. The parties were given the opportunity to make written costs submissions. The mother seeks costs of $6,500. The father did not make submissions.

Part Two – Legal considerations

[4] 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).

[5] 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.

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

[7] 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.

[8] 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.

[9] 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.

[10] 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.). 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.

[11] 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.

[12] Family law litigants are responsible for and accountable for the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.

Part Three – Analysis and order

[13] This case was important to the parties. It was not complex. It was made more difficult due to the father’s behaviour.

[14] The mother acted reasonably.

[15] The father acted unreasonably by failing to meet filing timelines and not providing proper financial disclosure, despite the court granting him two adjournments. He failed to comply with temporary without prejudice orders. He has paid no child support to the mother. His positions taken on the motions lacked merit.

[16] Neither party made an offer to settle. The mother submits she did not make an offer to settle because temporary without prejudice orders reflected her position. That is not a good reason for failing to make an offer.

[17] The rates claimed by the mother’s counsel ($450 each hour) are reasonable for a 1994 call to the bar.

[18] The amount of time claimed by the mother is reasonable and proportionate. She spent about 17 hours on the motions, including three attendances.

[19] The mother’s full recovery legal fees are $8,900. She is being reasonable and proportionate by only claiming $6,500 for costs.

[20] The court considered that the father has a limited ability to pay costs. The court imputed his annual income at $34,400. The court will address this factor by permitting him to pay costs over a reasonable time frame.

[21] The father should have expected to pay the amount of costs that will be ordered if he was unsuccessful.

[22] An order shall go as follows:

a) The father shall pay the mother $6,500 for her costs of the motions.

b) The father may pay the costs at the rate of $300 each month, starting on June 1, 2024. However, if he is more than 30 days late in making any costs payment the full amount then owing shall immediately become due and payable.

Released: April 26, 2024 _____________________ Justice S.B. Sherr