P. J. Monahan J.

The parties settled a motion to change regarding child support by way of a consent order, but left the issue of costs for the court to determine.

Both parties sought costs, arguing the other had acted unreasonably and claiming they were the successful party.

The court declined to award costs to either party, applying the general principle that costs are rarely awarded following a negotiated settlement because the court lacks the objective benchmarks necessary to assess relative success or reasonableness.

The accused was tried on charges of sexual assault with a weapon, unlawful confinement, and mischief arising from an alleged assault by an intimate partner.

The case turned primarily on the complainant's credibility and on the admissibility of post-incident text messages sent by the complainant to the accused.

After a mid-trial voir dire, the court held the texts did not contain personal information attracting a reasonable expectation of privacy and were therefore not 'records' under s. 278.1 requiring a s. 278.93 application.

Although the court found the complainant's account plausible and likely true, her unexplained lack of forthrightness about those communications raised a reasonable doubt that was not cured by the remaining evidence.

The accused was acquitted on all counts.

The court issued a costs endorsement following interim motions on parenting and financial issues.

Both parties sought costs from the other.

The Applicant argued for partial costs based on success in financial matters, while the Respondent sought substantial indemnity costs, citing full success on parenting issues and the Applicant's misrepresentation of income.

The court found success to be largely divided, with the Respondent succeeding on the primary parenting issue and the Applicant on several other important financial matters.

Neither party's settlement offer was significantly more favourable, and no unreasonable or bad faith conduct was found.

Consequently, the court declined to award costs, ordering each party to bear their own. interesting_citations_summary: > The endorsement reiterates the three purposes of modern family cost rules: indemnification, settlement encouragement, and sanctioning inappropriate behavior.

It emphasizes that while success is the starting point for costs, it is not determinative, and a "contextual analysis" is required for divided success, considering the importance of issues and resources expended, rather than a simple tally.

The court exercised its discretion under Rule 24(6) of the Family Law Rules to decline a costs award where success was largely divided and no misconduct was present. final_judgement: The court declined to make a costs order, ordering each party to bear their own costs. winning_degree_applicant: 3 winning_degree_respondent: 3 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 1378 file_number: "FS-18-2429" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1378/2019onsc1378.html" cited_cases: legislation: - title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" case_law: - title: "Serra v. Serra, 2009 ONCA 395" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca395/2009onca395.html" - title: "Berta v. Berta, 2015 ONCA 918" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca918/2015onca918.html" - title: "Thompson v. Drummond, 2018 ONSC 4762" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4762/2018onsc4762.html" keywords: - Costs - Family Law Rules - Divided success - Interim motions - Parenting issues - Financial issues - Offers to settle - Unreasonable conduct - Bad faith areas_of_law: - Family Law - Civil Procedure --- # Court File and Parties **Court File No.:** FS-18-2429 **Date:** 20190227 **Superior Court of Justice - Ontario** **Re:** Adam Rothschild, Applicant **And:** Amanda Rothschild, Respondent **Before:** P. J. Monahan J. **Counsel:** Harold Niman and Richard Niman, for the Applicant Jaret Moldaver and Jesse Rosenberg for the Respondent **Heard:** In Writing --- # Costs Endorsement [1] On January 28, 2018, I issued an Endorsement resolving a number of parenting issues involving the parties’ two children, on an interim without prejudice basis.

I also addressed a variety of financial issues, including interim child and spousal support, providing for a line of credit to be secured against the matrimonial home in order to fund costs associated with the litigation, and an order for exclusive possession of the matrimonial home. [2] The parties were unable to settle the issue of costs incurred in connection with their respective motions, and have made written submissions.

Each seeks an order for recovery of some or all of their costs from the other. [3] The Applicant concedes that he was unsuccessful on the parenting issues but maintains that he was more successful on numerous other financial issues.

On this basis he argues that he is entitled to a portion of his costs pursuant to [Rule 24(6) of the Family Law Rules](https://www.ontario.ca/laws/regulation/990114).

He seeks costs fixed in the amount of $20,000, which is less than half of his total costs incurred of $56,701.93. [4] The Respondent argues that she was entirely successful on the parenting issues which, as noted in my Endorsement, was a significant focus of the argument on these motions.

The Respondent also submits that, although success was divided on financial issues, she was forced to bring her motion for interim child and spousal support in light of what she characterizes as the Applicant’s falsely sworn representations, post separation, with respect to his income.

She therefore argues that she should be entitled to her costs on a substantial indemnity basis in the amount of $45,160.24, which is approximately 80% of her total costs of $55,526.86. [5] For the reasons that follow I decline to make a costs order in respect of these motions. # Applicable Legal Principles [6] It is well established that modern family cost rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants. [1] [7] [Rule 24(1)](https://www.ontario.ca/laws/regulation/990114) creates a presumption of costs in favour of the successful party. [2] While consideration of success is the starting point in determining costs, this presumption does not automatically require that the successful party be awarded his or her costs.

Entitlement to costs is subject to a variety of factors, including whether the successful party has behaved unreasonably, [3] whether there has been bad faith conduct, [4] and the nature of any offers to settle made by either party. [5] [8] Where success in a step in a case is divided, [Rule 24(6)](https://www.ontario.ca/laws/regulation/990114) provides that the court may apportion costs as appropriate.

The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them.

Rather, as Chappel J. noted recently in [Thompson v. Drummond, 2018 ONSC 4762](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4762/2018onsc4762.html) at paragraph 13, it requires a “contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication.” [9] Where the court concludes that success was in fact divided, [Rule 24(6)](https://www.ontario.ca/laws/regulation/990114) provides the court with considerable discretion.

In such a case, the court may decline to make an award of costs.

Conversely, the court may make an assessment as to which party was more successful on an overall global basis or on the primary issue, and to make an award of costs accordingly. # Analysis [10] As is evident from the fact that each party spent approximately $55,000 on this one-day motion, there were numerous issues in dispute.

However the most significant area of dispute revolved around the Applicant’s access to the parties’ two children and, on this issue, the Respondent was entirely successful.

In fact, I adopted her proposed access schedule in its entirety. [11] Success on the issue of child and spousal support was divided.

I determined the Applicant’s income to be $300,000, which fell between the income levels advanced by the parties.

In the result, the child and spousal support ordered fell between the amounts put forward by the parties. [12] The Applicant was successful on most of the other issue, a number of which were important.

I accepted the Applicant’s submission that a section 30 assessment was not appropriate at this time, and dismissed this aspect of the Respondent’s motion.

I accepted the Applicant’s argument that an income of $25,000 should be imputed to the Respondent, as well as his proposal to establish a line of credit secured against the matrimonial home, with the result that I dismissed the Respondent’s claim for an interim disbursement to fund her litigation costs.

I also dismissed the Respondent’s claim for an order of retroactive support, adjourning this aspect of her motion to trial. [13] Each party served an Offer to Settle.

Both Offers were reasonable.

However neither party achieved a result which was as favourable as their respective Offers.

I do not regard these Offers as materially affecting entitlement to costs on these motions. [14] Although the litigation was contentious and hotly disputed, I do not find that either party behaved unreasonably or in bad faith.

In my view, success on these motions was largely divided.

In the circumstances the most appropriate result is that each party should bear their own costs, and I so order. --- P. J. Monahan J. **Date:** February 27, 2019 --- [1] [Serra v. Serra, 2009 ONCA 395](https://www.canlii.org/en/on/onca/doc/2009/2009onca395/2009onca395.html) at paragraph 8. [2] [Berta v. Berta, 2015 ONCA 918](https://www.canlii.org/en/on/onca/doc/2015/2015onca918/2015onca918.html) at paragraph 94. [3] [Rule 24(4)](https://www.ontario.ca/laws/regulation/990114). [4] [Rule 24(8)](https://www.ontario.ca/laws/regulation/990114). [5] [Rule 18(14) & (16)](https://www.ontario.ca/laws/regulation/990114). [6] [2018 ONSC 4762](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4762/2018onsc4762.html) at paragraph 13.

The parties brought cross-motions for interim relief following their separation.

The court maintained the existing interim parenting schedule, finding that the applicant's proposed increase in overnight visits was not in the young children's best interests at this time.

The court declined to order a s. 30 assessment due to potential delay.

For interim support, the applicant's income was set at $300,000 based on his expert's report, and the respondent's imputed income was set at $25,000.

The respondent's request for a $108,000 interim disbursement was denied; instead, the court ordered the parties to secure a line of credit against the matrimonial home to fund litigation and private school expenses.

The respondent was granted interim exclusive possession of the matrimonial home.

The respondent sought costs of $31,975.26 on a full recovery basis after successfully obtaining a declaration that the applicant breached a court order regarding their child's travel, and successfully dismissing the applicant's cross-motion.

The applicant argued that success was divided and proposed each party bear their own costs.

The court found that while the respondent was presumptively entitled to costs as the successful party, both parties had behaved unreasonably, escalating a minor travel issue into costly litigation.

Emphasizing the principles of proportionality and reasonableness, the court exercised its discretion to significantly reduce the costs award, ordering the applicant to pay $2,500.

Following the dismissal of the plaintiff's motion for an injunction to prevent the termination of its franchise, the defendants sought their costs.

The court reviewed the parties' offers to settle and the defendants' cost outline.

Finding the time spent and rates charged to be reasonable, the court awarded the defendants their partial indemnity costs fixed at $41,670.61.

Following a successful application for the rescission of a contract to purchase seat licenses due to misrepresentation, the applicant sought costs on the higher end of the partial indemnity scale.

The respondent argued for a lower amount based on its own costs outline and the simplicity of the issues.

The court found the respondent's position on the merits was entirely without merit and awarded costs on the higher end of the partial indemnity scale, but reduced the applicant's claimed hours by 30% for being excessive.

Costs were fixed at $21,948.35.

The self-represented plaintiff brought a medical malpractice action arising from cosmetic eyelid surgeries, alleging negligent surgical technique, lack of informed consent, disfigurement, and later eye complications.

The court preferred the defence oculoplastic expert over the plaintiff's plastic surgery expert, finding the initial and subsequent surgeries were competently performed and that the moving party had consented to them after adequate disclosure of risks, benefits, and medically reasonable alternatives.

Although the defendant's limitation defence failed because ongoing good-faith remedial efforts made earlier litigation inappropriate, the plaintiff failed on standard of care, informed consent, and causation.

The action was dismissed, with the court also assessing hypothetical damages in the event liability had been established.

Following the dismissal of the applicant's motion for summary judgment regarding a real estate transaction deposit, the parties were unable to settle the quantum of costs.

The respondent sought $31,015.72 on a partial indemnity basis, while the applicant argued for approximately $11,000.

The court found the time spent by the respondent's counsel reasonable but reduced the partial indemnity hourly rate from 80% to 60% of the actual rate.

Costs were fixed at $24,314.82 inclusive of fees, disbursements, and HST.

The plaintiff franchisee sought an interlocutory injunction to prevent the defendant franchisor from acting on a notice terminating the franchise agreement.

The termination followed a dispute over the scope and cost of renovations required for a final five-year renewal.

Applying the RJR McDonald test, the court found a serious issue to be tried but concluded the franchisee failed to establish irreparable harm, as damages would be an adequate remedy and the franchise term was nearing its absolute end.

The balance of convenience also favoured the franchisor, partly because the franchisee failed to provide an undertaking as to damages.

The motion for an interlocutory injunction was dismissed.

The solicitors brought a motion to dismiss the clients' application for an assessment of accounts due to delay.

The accounts related to services provided between 2002 and 2012, and the assessment was ordered in 2012.

The court found that while the delay of over five years was inordinate and posed a risk of prejudice to the solicitors, it was not inexcusable on the part of the clients.

The delay was primarily institutional, caused by the actions and decisions of the assessment office.

The motion to dismiss was therefore dismissed.

The defendants brought a motion under Rule 21 to strike the plaintiff's amended statement of claim, which alleged malicious prosecution and misfeasance in public office arising from Law Society disciplinary proceedings.

The court found that the amended claim failed to provide the necessary particulars of improper purpose or ulterior motive, repeating the same bald and conclusory statements that led to a previous version of the claim being struck.

The court granted the motion, struck the amended claim without leave to amend, and dismissed the action with costs.

The appellant appealed a decision of the Consent and Capacity Board confirming she was incapable of consenting to treatment with antipsychotic medications.

The appellant argued there was insufficient corroboration of the physician's evidence, an insufficient examination, and a failure to inform her of treatment consequences.

The Superior Court of Justice dismissed the appeal, finding the Board reasonably concluded the appellant's own testimony and medical records corroborated the physician's diagnosis.

The court also held that the appellant's refusal to allow the physician to explain the treatment risks did not invalidate the finding of incapacity.

The defendants appealed a Master's decision refusing to discharge a certificate of pending litigation (CPL) on their property.

The plaintiff had commenced an action for specific performance of an agreement of purchase and sale.

The defendants argued that the plaintiff's subsequent purchase of a nearby property negated the uniqueness of their property.

The court upheld the Master's decision, finding no error of law in her assessment of uniqueness or her reliance on an affidavit from the plaintiff's ex-husband explaining the purpose of the second property.

The court concluded there remained a triable issue regarding the plaintiff's interest in the land and that the balance of convenience favoured maintaining the CPL.

Following a two-week jury trial for damages arising from a motor vehicle collision, the jury awarded the plaintiff $15,000 in general damages for a minor soft tissue strain.

The trial judge was required to determine whether the plaintiff met the statutory threshold under s. 267.5(5) of the Insurance Act.

The court found that while the plaintiff suffered a permanent impairment from a soft tissue injury to his left shoulder, the impairment was neither 'serious' nor 'important' as it did not substantially interfere with his employment or usual activities of daily living.

The plaintiff's claim for general damages was therefore dismissed.

The defendant builder brought a motion for summary judgment to dismiss the plaintiff's action for damages arising from mould discovered in a home purchased in 1997.

The plaintiff claimed over $6 million for physical, emotional, and financial injuries.

The court granted the motion, finding that the plaintiff's psychiatric injuries were not reasonably foreseeable to a person of ordinary fortitude, and that there was insufficient evidence to prove the mould caused his physical injuries or financial losses.

The action was dismissed with costs.

The applicant sought an accounting of funds raised for a community fund by the respondent mayor.

After the application was commenced, the respondent voluntarily provided the requested financial information and offered to settle on a without-costs basis.

The applicant agreed the matter was moot, but the respondent subsequently reversed course and sought a hearing on the merits to clear his name.

The court dismissed the application as moot, declining to exercise its discretion to hear it.

The court awarded costs to the applicant for the period after the respondent reversed his settlement position.

The defendants brought a motion to strike the plaintiff's statement of claim for civil fraud regarding alleged improper OHIP billing.

The court found that the plaintiff discovered the alleged fraud in 2009 but did not commence the action until 2017, well beyond the two-year limitation period.

Furthermore, the claim failed to disclose a reasonable cause of action for fraud because the plaintiff did not act in reliance on any representations made by the defendants.

The motion to strike was granted without leave to amend, and the action was dismissed.

Following the death of their mother, two sisters engaged in protracted and acrimonious estate litigation involving allegations of fraud and undue influence.

The parties eventually settled all substantive issues at mediation, agreeing to divide the estate equally, but left the issue of costs to be determined by the court.

The court found that the plaintiff had unreasonably escalated the litigation and ignored reasonable settlement offers.

Finding exceptional circumstances that justified a costs award despite the settlement, the court ordered the plaintiff to pay $75,000 in costs to the defendant.

Following the dismissal of the applicant's motion for an interim injunction against a former employee, the parties made written submissions on costs.

The respondent sought elevated costs on a substantial or full indemnity basis, arguing the application was meritless and intended to intimidate.

The court found the application was not frivolous and counsel conduct was not inappropriate.

Costs were awarded to the respondent on a partial indemnity basis fixed at $12,500 all inclusive.