COURT FILE NO.: FS-16-86157-00 DATE: 2018 11 22

ONTARIO

SUPERIOR COURT OF JUSTICE

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vidoll Augustine Regisford, Plaintiff AND Loraine Marcia Regisford, Defendant

BEFORE: McSWEENEY J.

COUNSEL: Matthew E. Pike, for the Plaintiff Adam N. Black, for the Defendant

HEARD: October 12, 2018

COSTS ENDORSEMENT

[1] On September 13, 2018, parties in this family law application appeared before me on a regular short motions list at the Superior Court of Justice in Brampton. Each had brought a motion regarding disclosure. I did not hear the motion; the parties resolved their issues on consent. I endorsed the record as follows: “Disclosure motion resolved on basis of minutes attached (signed today). Order to issue accordingly.” The minutes signed by the parties stated as follows: “On consent, the parties agree orders shall issue in accordance with Schedules A and B attached hereto. Either party may seek costs on written submissions to be filed within ten days.”

[2] The schedules to the minutes required each of the parties to provide specified disclosure to the other.

[3] On September 24, 2018, the applicant filed cost submissions. On September 28, 2018, the respondent filed responding cost submissions.

[4] The threshold question before me is whether or not in these circumstances I should consider their submissions and make a costs award. I note first that parties who settle matters after coming to court on a scheduled motion may, and do regularly, agree on costs as part of the settlement. The parties in this matter did not do so. Had they done so, such an order would be enforceable per its terms as an order of the court.

[5] I decline to exercise my discretion to order costs in this matter for the following reasons.

[6] First, the court did not hear the motion on the merits. As motions judge, therefore, I did not have an opportunity to consider and weigh the relative strength of the evidence and submissions.

[7] Secondly, inviting the court to consider over 50 pages of materials, inclusive of case references, following a brief attendance and consent minutes cannot in any way be viewed as a proportionate allocation of judicial resources.

[8] In the specific circumstances of these motions, I note that the Brampton Superior Court is one of the busiest courts in Canada. Its family/civil regular motions list routinely contains 15-25 matters for a single judge to hear on a given day. It is important for the court to allocate its judicial resources to reviewing, hearing and determining such matters as appear on the regular motions list.

[9] The parties have resolved their matter after a brief attendance, but are attempting to create a new written motion in its wake. To allow this would sanction the use of judicial resources inconsistent with the judicial system’s obligation to assure timely, relevant and accessible justice to all parties on the motion list.

Applicable law

[10] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 gives the courts a broad and general discretion to award costs. The court may determine whether to make an order for costs, and if so to whom, and in what amount.

[11] This court has cited with approval the following statement from Mark M. Orkin, The Law of Costs, 2nd ed. (Toronto: Thomson Reuters, 2018) (loose leaf) at para. 403.1:

Costs are generally not appropriate for a consent order on the reasoning that the order was not made as a result of adjudication on the merits of the application.

[12] Minnema J. cited this passage with approval at para. 12 of Ball v. Ball, 2014 ONSC 5754 and continued:

Without adjudication, it can be very difficult to know who has had success. As noted in Barber v. MaGee, [2013] O.J. No. 4657 (O.C.J.) at para. 23:

Consideration of success is the starting point in determining costs. However, any attempt to determine a “winner” or “loser” in a settlement is, in most cases, complex if not impossible. … Unless there are compelling reasons to do so, costs in the circumstances of the settlement between parties ought not to be awarded by the court. [citations omitted]

Similarly, the court’s ability to determine whether there has been inappropriate behaviour by a litigant based only on submissions, when the court has not adjudicated the merits or received sworn evidence in keeping with the rules of procedural fairness, is also very limited.

[13] Ricchetti J. made a related observation in Blank v. Micallef, [2009] O.J. No. 4636 (Sup. Ct.) at para. 11, noting that the court should be slow to make costs awards on settlements, because the parties themselves are best positioned to determine costs at settlement.

[14] Rule 2 of the Family Law Rules is clear that the Rules’ primary objective is to enable courts to deal with cases justly by ensuring a fair procedure, saving expense and time, dealing with a case in ways appropriate to its importance and complexity, and perhaps most importantly in this case, allocating appropriate court resources to the case while taking account of the need to give resources to other cases.

[15] Per Serra v. Serra, 2009 ONCA 395, at para. 8, the purpose of costs awards is to indemnify successful litigants, encourage settlement and discourage and sanction inappropriate behaviour by litigants. At para. 12, the Court of Appeal emphasized that costs awards should reflect the court’s view of a reasonable and fair amount the unsuccessful party should pay.

[16] In this case settlement has been reached without adjudication on the merits. It was open to the parties to agree on and allocate costs between them. They have yet to do so. As such, I cannot allow the court to sanction a circumstance where it encourages settlement, but takes it upon itself to determine a “winner” in the settlement. Both parties brought motions, and both parties to the settlement agreed to take certain steps and made certain disclosure agreements.

Conclusion

[17] For the foregoing reasons I decline to make an order for costs.

McSweeney J. Released: November 22, 2018