Court File and Parties

COURT FILE NO.: FC-20-699

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Joy Baron, Applicant

AND:

Cat Baron, Respondent

BEFORE: Master Kaufman

COUNSEL: Joy Baron, representing herself Erin Lepine, for the Respondent

HEARD: In writing

COSTS ENDORSEMENT

[1] On June 1, 2020, I denied Joy Baron’s request to have an urgent motion heard for the resumption of the parties’ regular parenting schedule. I determined that Joy had a responsibility to attempt to resolve the dispute before coming to the Court, and that if the parties were to make good faith efforts to resolve the conflict and still could not resolve it, then the matter could be brought back to Court.

[2] Cat Baron seeks her costs for this urgency determination. Both parties initially had counsel and expanded significant resources. Joy Baron attached her counsel’s bill and it is comparable to Cat Baron’s ($3864 vs. $3438, not including HST).

[3] Cat Baron argues that as the successful party, she is presumptively entitled to costs, that Joy Baron behaved unreasonably by judicializing a conflict that could have been resolved between the parties, while she made significant efforts to resolve the conflict in a child focused manner. She adds that Joy knew that costs that costs would be sought and argues that Joy’s failure to engage in good faith discussions warrants an elevated costs award.

[4] Joy argues that it is Cat who acted in bad faith by not respecting the parties’ separation agreement. She believes that Cat is behaving in a way as to control who she can date and to estrange her from the children. Finally, she adds that she is a single mother and that a costs award would affect the children’s best interests as she could not afford to continue renting her home.

[5] The modern costs rule is designed to accomplish three objectives: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.[^1] The starting point is that the successful party is presumptively entitled to costs.[^2] However, as the Ontario Court of Appeal stated in Beaver v. Hill[^3], there is no presumption that the successful party in a family law proceeding is entitled to an amount approaching full or even substantial indemnity costs. The exceptions to that principle are bad faith (r. 24(8)) or besting an offer to settle.

[6] Further, subrule 24(12) sets out the appropriate considerations in fixing costs:

(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,

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.

[7] I do not accept Joy Baron’s submission that there should be no costs awarded. She spent a similar amount on legal fees and disbursements as Cat Baron. Had Joy been the successful party, I have no doubt that she would have argued that she should have been awarded costs.

[8] Joy Baron’s evidence was that she is employed as a child protection worker and has worked in the social work field for the past 24 years. While she submits that a costs award would be detrimental to the children because she would lose her housing, she provided no evidence to substantiate this assertion.

[9] The general rule is that costs are awarded on a partial indemnity basis. In rare cases, however, the costs may be increased to substantial indemnity or even a full indemnity basis where it is necessary to mark the court’s disapproval of the conduct of the party in the litigation. Here, while I concluded that Joy Baron should have attempted to resolve this dispute before coming to Court, I do not attribute bad faith to her actions. She clearly feels a lot of hostility towards Cat and she proceeded in a very adversarial manner. There is merit to the argument that elevated costs are warranted, but I consider that in this case an award of costs on a partial indemnity scale would accomplish the objectives that modern costs rules are designed to foster.

[10] Considering Cat Baron’s success on the motion and the factors listed in subrule 24(12), I fix costs in the amount of $2,100, payable within 30 days. If Joy Baron has difficulty paying this amount after 30 days, I encourage the parties to agree to a reasonable payment plan.

Master Kaufman

Date: June 29, 2020

[^1]: Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, at para. 22. [^2]: Family Law Rules, R. 24(1). [^3]: 2018 ONCA 840.