Costs Endorsement
Part One – Introduction
[1] On December 11, 2024, the court released its reasons for decision following motions for temporary parenting and child support orders regarding the parties’ 13-year-old child. See: McGuire v. Tyrell, 2024 ONCJ 643.
[2] The court granted the applicant (the mother) temporary decision-making responsibility for the child’s major educational and health issues, including vaccinations. The court ordered that the parties have temporary joint decision-making responsibility concerning any other major issue concerning the child.
[3] The court also ordered the father to pay temporary child support to the mother of $600 each month, starting on January 1, 2025.
[4] The court gave the parties the opportunity to make written costs submissions. The mother seeks costs of $5,765. The father did not make costs submissions.
Part Two – General costs principles
[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, para 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, para 94.
Part Three – Did the mother’s offer to settle attract the costs consequences set out in subrule 18(14)?
[9] The answer is yes.
[10] 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.
[11] 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).
[12] 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.
[13] 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.
[14] The mother made a severable offer to settle dated November 7, 2024. It was more favourable to the father than the motion result as follows:
a) The mother proposed that the parties have joint decision-making responsibility for the child, with a provision that the parties follow professional advice if they cannot agree on a major issue. The court gave the mother sole decision-making responsibility over the important issues of health, including vaccinations, and education.
b) The mother proposed that the father pay her temporary child support of $359 each month. The court ordered him to pay her child support of $600 each month.
c) The mother proposed to settle for no costs. Costs will be awarded to her.
[15] The father made three offers to settle. None of them were close to being more favourable to the mother than the motions results.
[16] The mother is presumptively entitled to her costs until November 7, 2024, and to her full recovery costs after November 7, 2024. The father did not rebut that presumption.
Part Four – Legal considerations for the amount of costs
[17] 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.
[18] The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855.
[19] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 2003 ONCA 18880, 67 O.R. (3d) 181 (Ont. C.A.).
[20] 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 Five – Analysis
[21] This case was important to the parties. It had some difficulty and complexity. The parties had to address the issue of vaccination and the best interests of the child. They had to address whether the court should disregard the child support provisions of their domestic agreement. They also had to address whether income should be imputed to the mother and present a support analysis pursuant to section 9 of the Child Support Guidelines.
[22] The mother acted reasonably. She took reasonable positions that were accepted by the court.
[23] The father acted reasonably by making three offers to settle and meeting filing timelines. He contested the decision-making responsibility issue because he sincerely believed the child was in danger if he was vaccinated. He took an unreasonable position on child support. He took the position that no child support should be paid.
[24] The mother’s counsel’s rates of $315 per hour are reasonable and proportionate.
[25] The time claimed by the mother’s counsel was reasonable and proportionate. She only claimed time for the motion step. She also divided her bill of costs into the time spent before and after the mother made her offer to settle. She did not seek full recovery costs for the work she did prior to making the offer to settle.
[26] The father can afford to pay the costs that will be ordered, particularly if he is given a reasonable payment plan.
[27] The father should have reasonably expected to pay the costs that will be ordered if he was unsuccessful.
[28] The court finds that the father should pay total costs to the mother of $5,500, inclusive of fees, disbursements and HST. He may pay the costs at $500 each month, starting on February 1, 2025. However, if he is more than 30 days late in making any support payment, or costs payment, the entire amount of costs then owing shall immediately become due and payable.
Part Six – The order
[29] An order shall go as follows:
a) The father shall pay the mother’s costs fixed at $5,500, inclusive of fees, disbursements and HST.
b) The father may pay the costs at $500 each month, starting on February 1, 2025. However, if he is more than 30 days late in making any support payment, or costs payment, the entire amount of costs then owing shall immediately become due and payable.
Released: January 22, 2025
Justice Stanley B. Sherr