Court File and Parties

Court File No.: FC-17-1927 Date: 2020-02-28 Ontario Superior Court of Justice

Between: Rosalie Mastrangelo, Applicant – and – Antonio Pietro Paolo Di Cristofaro, Respondent

Counsel: Gil Rumstein, for the Applicant Respondent, Self-represented

Heard: In writing

Decision on Costs

Audet J.

[1] On December 27, 2019, I released my decision in this matter. If the parties were unable to settle the issue of costs, they were invited to provide me with written submissions following which I would decide the issue. The mother provided her submissions on January 23, 2020. The father had until February 14, 2020 to provide his, but he did not.

[2] Based on the submissions received, this is my decision on costs.

[3] The main issue in this trial was the parenting of the parties’ two children. While the issues of child support and post-separation adjustments were also live issues, they were most certainly secondary ones. On the eve of trial, the parties were able to settle all property matters by way of Final Partial Minutes of Settlement to be incorporated into a final order. In these Minutes, they had also agreed to various provisions related to parenting, which were ultimately incorporated into my final order, on consent, along with the divorce. This significantly reduced the time required for trial.

Legal Framework

[4] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under sub-rule 2(2) of the Family Law Rules, O. Reg. 114/99 (“the rules”) (Mattina v. Mattina, 2018 ONCA 867).

[5] 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 (British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371, 2003 SCC 71 at para. 25).

[6] Sub-rule 24(1) of the rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs (Sims-Howarth v. Bilcliffe (2000), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.) (Fam. Div.)). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made (Lawson v. Lawson). The position each party took at trial should also be examined.

[7] Sub-rule 18(14) of the rules provides that 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 conditions set out therein are met. 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 (Wilson v. Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362).

[8] An award of costs is subject to the factors listed in sub-rule 24(12), sub-rule 24(4) pertaining to unreasonable conduct of a successful party, sub-rule 24(8) pertaining to bad faith, sub-rule 18(14) pertaining to Offers to Settle, and the reasonableness of the costs sought by the successful party (Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 at para. 94).

[9] In making its decision, the court must finally consider the factors set out in sub-rule 24(12) of the rules which 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:

(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,

(iii) any legal fees, including the number of lawyers and their rates,

(iv) any expert witness fees, including the number of experts and their rates,

(v) any other expenses properly paid or payable; and

(b) any other relevant matter.

Analysis

[10] The parties achieved mixed success on the highly litigated issue of parenting, as neither party obtained the result they were seeking. While the mother was granted final decision-making authority on most matters pertaining to the children, the father was granted final decision-making authority regarding the children’s dental care, in their hockey, baseball and other team sports. While the mother was granted primary residence of the children, the father obtained more access than she was prepared to give at trial as he was provided an extra overnight every two weeks on the Sunday evening and additional parenting time during the summer.

[11] The mother, however, was successful with respect to the outstanding financial issues which included retroactive adjustments of child support and post-separation expenses.

[12] While I agree with the mother’s counsel’s submissions that despite the mixed success, the mother achieved a higher degree of success on all issues (as stated earlier, the main issue at trial related to whether or not the children would continue in the equal timesharing arrangement or move their primary residence with their mother, which ultimately decided the issue of child support), I do not agree that the degree of success she achieved would necessarily lead to a presumption that she is entitled to costs. In particular, the mother’s position with regards to retroactive adjustments of child support was not accepted by the court.

[13] It is conceded by the mother that she did not make an Offer to Settle until August 23, 2019, a few weeks before this matter was first scheduled to proceed to trial (it had to be adjourned to the November sittings through no fault of the parties), and that her offer did not meet the requirements of rule 18(14) to bring about the serious cost consequences that it contemplates. I have reviewed the Offers to Settle made by the father in this case, and they did not meet those requirements either.

[14] Neither party behaved in a way that would justify a cost award on a substantial or full indemnity basis, nor is it argued.

[15] I am of the view that despite the above, the mother is entitled to some costs on the basis of the higher level of success she achieved as well as the following:

a. the father’s financial disclosure only came late in the day. Significant efforts were required for the mother to obtain the disclosure that would have allowed her to make an Offer to Settle much earlier in the process, and to prepare for trial. Of note is that the valuation of the father’s most significant asset, his pension plan, was only provided in April 2019, and that despite the clear requirements of the Rules and a court order requiring him to do so much earlier, the father only provided an updated sworn financial statement on the eve of trial. This resulted in extra costs for the mother;

b. although the mother served the father with a request to admit and a comprehensive Offer to Settle with a view to narrow the issues in dispute for trial, the father did not avail himself of those opportunities until shortly before the commencement of the trial resulting in significant costs being incurred by the mother, unnecessarily, in preparation for the trial;

c. because the mother was represented and the father was not, the mother bore the brunt of the costs associated with presenting the parties’ positions and evidence to the court at trial (book of documents, draft orders, minutes of settlement, child support calculations, etc.).

[16] As confirmed by the mother’s comprehensive Bill of Costs, she incurred a total of $54,881.12 in legal fees since this matter begin in March 2017 (excluding those events during which costs were already fixed), comprising of the following:

a. Legal fees: $50,995

b. Disbursements: $2310.86

c. HST: $6747.49

[17] I have considered the mother’s counsel’s fees, hourly rate and time invested in this matter and I find them very reasonable given that this was a high conflict parenting matter which spanned over 2 ½ years and culminated into a five-day trial. Ultimately, having considered all of the above factors, I come to the conclusion that the father should pay the mother costs in the amount of $10,000 all-inclusive.

[18] The above costs owing by the father to the mother shall be set off from the balance of the equalization payment owing by the mother to the father ($16,139.75).

Madam Justice Julie Audet Released: February 28, 2020