Canales v. Di Carmine, 2025 ONCJ 28
Date: January 17, 2025
Court File No.: D44879/24
Court: Ontario Court of Justice
Heard: In Chambers
Judge: Justice Stanley B. Sherr
Parties
Applicant: Bruce Hernan Canales
Counsel for Applicant: Lisa Chegini and Juliana Dapula
Respondent: Lora Di Carmine
Counsel for Respondent: Mykhaylo Poluektov
Costs Endorsement
Part One – Introduction
[1] On December 4, 2024, the court released its reasons for decision regarding the respondent’s (the mother’s) motion for temporary spousal support. See: Canales v. Di Carmine, 2024 ONCJ 625.
[2] The court gave the parties the opportunity to make written costs submissions. The mother seeks costs of $2,401. The applicant (the father) submits that costs of this step should be deferred to the trial judge. In the alternative, he submits that no costs should be ordered as there was divided success on the motion.
Part Two – General costs principles
[3] 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).
[4] 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, para 25.
[5] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[6] 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, para 94.
Part Two – Did the mother’s offer to settle attract the costs consequences set out in subrule 18(14)?
[7] The answer is no.
[8] 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.
[9] 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] O.J. No. 3842 (SCJ).
[10] The mother made an offer to settle dated November 30, 2024. She proposed that the father pay her temporary spousal support of $1,915 each month for a duration of 15 years. The court ordered the father to pay the mother temporary spousal support of $2,000 each month, starting on April 1, 2024. The mother submits that her offer was more favourable to the father than the motion result and the costs consequences set out in subrule 18(14) apply.
[11] The court disagrees with the mother. Her offer proposed to settle the case on a final basis, not on a temporary basis. It will not be known until after a trial if this offer to settle was more favourable to the father than the result. The father should not be required to accept a final offer to settle a temporary motion. In this case, he would have been required to accept the duration proposed by the mother when duration was not an issue on the temporary motion.
[12] Further, the mother served her offer to settle on Saturday November 30, 2024, when the court office was closed. This means it was served pursuant to the rules on December 2, 2024 – the day the court office reopened and when the motion was heard. See: subrule 3(2). The offer to settle was not in compliance with paragraph 1 of subrule 18(14). This court has often commented that offers served with minimal notice have little value, as they do not give the other party sufficient time to process it. See: E.O. v. O.K., 2018 ONCJ 578; Oduwole v. Moses, 2016 ONCJ 653; Wright v. James, 2024 ONCJ 653.
Part Three – Success
[13] Subrule 24(1) creates a presumption that costs should be awarded to the successful party on a motion.
[14] Subrule 24(6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[15] 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, para 66.
[16] 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.
[17] In her notice of motion, the mother sought temporary spousal support of $2,593 each month, retroactive to January 1, 2023. The father submitted the mother was not entitled to spousal support and asked the court not to make a temporary spousal support order. He submitted that all spousal support issues should be determined by the trial judge.
[18] The court found that the mother was entitled to temporary spousal support and ordered $2,000 each month, starting on April 1, 2024. This was the month that the mother issued her Answer/Claim and was prospective support. The issue of retroactive spousal support in this case is complex, and the analysis required to assess it is better conducted by the trial judge.
[19] There was divided success on the motion.
[20] The father was the successful party on the issue of retroactive temporary spousal support. None was ordered.
[21] The mother was the far more successful party on the issue of prospective temporary spousal support. The father asked that no temporary spousal support be ordered.
[22] The dominant issue on the motion was the establishment of a temporary spousal support order. The mother successfully obtained a significant order.
[23] The mother was the more successful party on the motion.
Part Four – Should costs be ordered when the court endorsed that the temporary spousal support amount was subject to adjustment at trial as to the amount and the start date?
[24] The court ordered that the temporary spousal support order was subject to adjustment at trial, both with respect to the amount and the start date. The father submits this made the order “without prejudice” and that any costs determination should be deferred to the trial judge.
[25] The court disagrees. All temporary support orders are subject to adjustment as to amount and start date by a trial judge. This does not make the temporary order “without prejudice”. If the father moves before the trial to change the temporary order, he will now have to first establish that there has been a material change in circumstances. It would not be a fresh analysis, which is what would happen if a without prejudice order was in place.
Part Five – Should the court defer the costs decision for this step to the trial judge?
[26] The father did not rebut the presumption that the mother is entitled to her costs of this motion.
[27] Subrule 24(10) sets out that courts should determine costs in a summary manner at each step of the case. Costs should not be reserved to trial judges where the motions judge is in the best position to assess the costs of that step. That is the case here. The court will not defer the costs of this step to the trial judge.
Part Six – Legal considerations for the amount of costs
[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] 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.
[30] This motion was important to the parties. It was not complex or difficult.
[31] The father acted reasonably on the motion. He made a timely offer to settle.
[32] The mother did not make a timely offer to settle. She should have also offered to settle the temporary issue that was the subject of the motion. Otherwise, she acted reasonably.
[33] The time and amount claimed by the mother was very reasonable and proportionate.
[34] The father can afford to pay the costs that will be ordered.
[35] The father should have reasonably expected to pay the costs that will be ordered if he was unsuccessful.
Part Seven – The order
[36] An order shall go that the father should pay costs to the mother of $1,200, inclusive of fees, disbursements and HST. The costs are due and payable in 30 days.
Released: January 17, 2025
Justice Stanley B. Sherr