Court File and Parties

Court File No.: FC-17-2417 Date: 2019/02/04 Superior Court of Justice - Ontario

Re: David Obregon, Applicant And: Samantha Montgomery, Respondent

Before: Justice P. MacEachern

Counsel: Applicant, self-represented S. Arlitt, for the Respondent

Heard: In Writing

Endorsement

Overview

[1] This is my decision on costs following the motion heard on August 16, 2018 (see Obregon v. Montgomery, 2018 ONSC 6070).

[2] The motion on August 16, 29018 was Ms. Montgomery’s motion. She sought temporary sole custody with no access to the Applicant and a restraining order. I granted these orders, although I dismissed Ms. Montgomery’s claim for a more expansive restraining order than the one granted.

[3] I provided that if the parties are unable to agree on the issue of costs, Ms. Montgomery may serve and file submissions with respect to costs on or before November 12, 2018. Mr. Obregon was given until January 10, 2019 to file his response.

[4] Ms. Montgomery has filed submissions seeking costs, although these were just provided to the court on January 29, 2019. The material provided confirms, however, that these submissions were provided to Mr. Obregon’s counsel prior to November 12, 2018, and therefore I have accepted them.

[5] As of February 1st, 2019, Mr. Obregon has not provided any submission on costs. His lawyer, Mr. Gibson, was removed from the record by order dated January 7, 2019. That Endorsement was required to be served on Mr. Obregon at his last known address. Mr. Gibson confirms that he has done so.

[6] Although Mr. Obregon is no longer represented by counsel, I find that he has had a fair opportunity to provide his submissions on costs or to request a further extension of time to do so. He has not done so and therefore I have determined costs based on the material before me.

Positions of the Parties

[7] Ms. Montgomery seeks costs in the amount of $3,168.72. This represents costs on a full indemnity basis, plus HST and disbursements, incurred for the period from May 29, 2018 to the hearing of the motion. I am satisfied, based on the material filed, that these costs were incurred with respect to this motion.

[8] Ms. Montgomery argues that Mr. Obregon acted unreasonably by failing to provide any responding material on the motion, despite being served on June 14, 2018. She also relies on her offer to settle the motion, although this offer was only served at 3:40 p.m. on August 15, 2018, the day before the motion was heard on August 16, 2018.

Legal Principles

[9] The Ontario Court of Appeal in Mattina v. Mattina[^1] recently confirmed that the modern cost rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly (Rule 2(2))[^2].

[10] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.

[11] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party[^3].

[12] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

“(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.”

[13] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14)[^4].

Analysis and Disposition

[14] Ms. Montgomery was the successful party on the motion and is presumptively entitled to her costs.[^5] I find her lawyer’s bill of costs, in the total amount of $3,168.72, reasonable and proportional for the work required to bring this motion. The motion was reasonable given the circumstances. The issues were important to the parties but not legally complex.

[15] Ms. Montgomery’s offer to settle does not meet the requirements of Rule 18(14) which would entitle her to full recovery of her costs from the date the offer was served. The costs consequences of Rule 18 only apply to an