COURT FILE NO.: FC-FO000079-0001

DATE: 20200826

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OLGA KNOCKE, Applicant/Respondent in Appeal

AND:

PETER KNOCKE, Respondent/Appellant

BEFORE: JUSTICE L. SHEARD

COUNSEL: Applicant/Respondent in Appeal - Unrepresented

Deborah Ditchfield and Nolan Wilson for the Respondent/Appellant

HEARD: August 11, 2020 – ZOOM Hearing

JUDGMENT ON APPEAL

[1] By my Order of August 29, 2019, the Respondent was granted leave to appeal the costs order of Hilliard J., made April 24, 2019, awarding the Respondent $2,500 in costs.

[2] By Order of Justice Nightingale, LAJ for Simcoe, made February 5, 2020, the appeal was directed to be heard by me.

[3] On March 21, 2019, there were two motions before Hilliard J.:

i) the Applicant’s motion for leave to file an Amended Response to [the Respondent’s] Motion to Change the Final Order of Justice Sherwood dated August 26, 2014, by which the Applicant sought to pursue a claim for extraordinary expenses for the parties’ children, both retroactively to 2015, and ongoing (the “Amended Response”); and

ii) the Respondent’s motion for summary judgment to dismiss the relief sought by the Applicant.

[4] As the Respondent would not consent to the late delivery of the Applicant’s Amended Response, leave was required. The Applicant served her motion one day prior to the Respondent’s motion for summary judgment. The two motions were argued together. Although self-represented on this appeal, the Applicant was represented by counsel on the motions.

[5] The motion judge granted leave to the Applicant to file her Amended Response, but subsequently dismissed the Applicant’s claims for payment of extraordinary expenses and granted summary judgment in favour of the Respondent.

[6] In her Reasons for Judgment of March 21, 2019 (the “Reasons”), the motion judge concluded that “on the Applicant’s own evidence there is no demonstrated material change in circumstances that would justify the Court revisiting the issue of the Respondent’s contribution to the children’s extraordinary expenses” (para. 28). The motion judge stated that the “Applicant’s evidence on the issue of the material change in circumstances is internally inconsistent and contradictory” (para. 36) and found that the “Applicant’s position that she continued to expect the Respondent to pay or contribute something toward the children’s extraordinary expenses after August 2014 defies logic and common sense” (at 39).

[7] At paragraphs 40, 42 and 43 of the Reasons, the motion judge stated the following:

[40] It is clear on the Applicant’s own evidence that the parties were discussing the issue of the children’s extracurricular expenses as far back as July 2013 and the ultimate financial arrangement that was structured and made into the Final Order of Justice Sherwood contemplates contribution to RESPs being made by the Respondent, as well as payment for orthodontic expenses. I do not accept that the issue of the children’s extracurricular activities was forgotten or not contemplated by the arrangement that was reached between the parties.

[42] It is clear on the evidence and I find as a fact that the parties entered into a mutually beneficial financial arrangement that resulted in the Order of Justice Sherwood, dated August 26, 2014 which provided a comprehensive settlement of the issues of child and spousal support.

[43] Based on these findings, there is no legal basis for the Applicant’s claim for retroactive contribution to extraordinary expenses and therefore no need for a trial on that issue.

Costs Decision Appealed

[8] The parties were invited to make written costs submissions. In these, the motion judge was informed of the offers to settle exchanged by the parties concerning the Applicant’s claims.

i. Applicant’s Position on Costs

[9] The Applicant submitted that each party should be responsible for their own costs. The Applicant also addressed the amount claimed by the Respondent in his Bill of Costs by providing her own schedule, setting out the Respondent’s fees that she deemed to be reasonable, on a partial indemnity basis. In the Applicant’s schedule, she had removed expenses she deemed to be unreasonable and reduced counsel time by 50%.

[10] The Applicant also argued that she did not have the ability to pay costs by reason of her recent loss of employment.

[11] Finally, despite the motion judge’s findings on the issue, the Applicant again asserted that she had believed “that the Respondent would pay his share of the children’s extracurriculars as he had done before” (Applicant’s costs submissions, at para. 49).

ii. Respondent’s Position on Costs

[12] The Respondent sought his costs on a full indemnity basis in the amount of $28,439.90. He also calculated his costs on a substantial indemnity basis at $21,021.45. He argued that, as the successful party, under r. 24(1) of the FLA, he was presumptively entitled to his costs.

[13] The Respondent also relied on the provisions of r. 18(14) of the FLA. Under that rule, the Respondent would be entitled to his costs: he obtained an order – the dismissal of the Applicant’s claims – that was more favourable to him than the Respondent’s offers.

Motion Judge’s Reasons

[14] In the motion judge’s Reasons for Judgment on costs dated April 24, 2019 (the “Costs Decision”), she stated that the Respondent had made multiple offers to settle, “all of which would have put the Applicant in a better position than after judgment was rendered on the motions. By virtue of those offers to settle which were served, one of which remained open for acceptance at the date of the hearing of the motions, I find that the Respondent was somewhat more successful than the Applicant overall” (para. 12).

[15] However, the motion judge concluded that an award of full indemnity costs to the Respondent was not appropriate and stated the following at para. 13:

[H]ad the Respondent consented to the Applicant’s request to amend her Response to Motion to Change and then brought forward a motion for summary judgment to dismiss the Respondent’s claims and been successful, that would have placed the Respondent squarely within Rule 24 (1) as the successful party, entitled to at least substantial indemnity costs given the offers that were served upon the Applicant.

[16] On the basis that the Applicant had been successful in her motion for leave to file her Amended Response, the motion judge found that on the two motions heard by her, there was “divided success” as between the parties.

[17] The motion judge specifically rejected that the Applicant had acted in bad faith, and found that the Applicant’s argument of mutual mistake raised at the motion did not amount to bad faith. The motion judge found that both parties engaged in behaviour that was unreasonable and led to additional and unnecessary litigation costs.

[18] The motion judge awarded costs to the Respondent in the amount of $2,500.

Motion for Leave to Appeal

[19] On May 9, 2019, the Respondent moved for leave to appeal the costs order.

[20] The Respondent’s motion for leave to appeal was heard by me on August 29, 2019. I granted leave.

[21] As set out in my reasons for granting leave, I found that the motion judge had

(i) erred in law and in principle in concluding that there had been divided success between the parties;

(ii) failed to engage in an analysis of the presumptive cost consequences of rule 18 (14) of the Family Law Rules (the “FLR”) that arose when, as found by the motion judge, the Respondent obtained an order that was more favourable than his offer to settle; and

(iii) erred in principle and was plainly wrong when she concluded that, but for the Respondent’s refusal to consent to the Applicant’s motion to amend her pleadings, he would have been entitled to his costs under rule 24 (1) of the FLR.

Appeal

[22] For the purposes of this appeal, I adopt and repeat my findings on the leave motion. On that basis, the arguments advanced on the appeal were directed at the amount of costs that ought to be awarded upon application of the law concerning costs to the facts as found by the motion judge.

[23] At the hearing, there were two matters to be determined:

1. the Applicant’s motion for leave to file fresh evidence; and

2. the appeal itself.

(1) Applicant’s Motion to admit fresh evidence

[24] Until the hearing itself, it was not entirely clear what fresh evidence the Applicant was asking the court to admit.

[25] While she had filed a motion asking the court to admit and consider fresh evidence on the appeal, the Applicant did not file an affidavit setting out the fresh evidence until August 6, 2020 – only days before the hearing of the appeal.

[26] The Applicant had earlier filed a factum, which contained numerous facts not in evidence or before the motion judge. In her oral submissions on the appeal, the Applicant asked the court to consider the “fresh” evidence contained in her factum in addition to the new evidence set out in her affidavit of August 6, 2020 (the “New Affidavit”). The Applicant explained that because of the current limits on the size of documents which may be submitted to the court, she had used the factum, which was accompanied by various dental/orthodontal invoices and estimates and some paystubs, as well as the New Affidavit with emailed attachments, to set out her fresh evidence.

[27] The crux of the fresh evidence that the Applicant seeks to put before the court is her inability to pay a cost award by reason of a period of unemployment and her allegation that the Respondent has not paid his share of the dental and orthodontal expenses for the child who lives with the Applicant. While the Applicant attached some paystubs from 2019, the New Affidavit does not include a current financial statement or a copy of the Applicant’s 2019 income tax return or Notice of Assessment.

[28] The New Affidavit also includes submissions on the law, including reference to cases that the Applicant submits are relevant to the Appeal and to her motion to admit fresh evidence.

[29] The Respondent concedes that ability to pay is a relevant factor to be taken into account in determining a costs award, but opposes the Applicant’s motion to admit fresh evidence as set out in the New Affidavit or found in the Applicant’s factum. The Respondent asserts that the evidence concerning the Applicant’s financial position is unreliable and incomplete. With respect to the orthodontal expense, the Respondent correctly points out that the Applicant provided an estimate only. He also submits that none of the alleged expenses had been submitted for reimbursement from his employer dental plan.

[30] The Respondent submits that the Applicant failed to meet the legal test for the admission of fresh evidence in a civil appeal.

The Law Concerning Fresh Evidence

[31] The Respondent asks the court to consider the recent Court of Appeal decision in Ojeikere v. Ojeikere 2018 ONCA 372, 140 O.R. (3d) 561, in which the court confirmed that the leading cases on the admission of fresh evidence in a civil appeal remain R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 and Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 OR (3d) 208 (C.A.).

[32] While the court found the test in Sengmueller to be more demanding than that in Palmer, it concluded that there was no material difference between the two tests. The court applied the test set out in Sengmueller and noted that “both tests are applied more flexibly in custody or child welfare cases to allow the court to have up-to-date information about a child in the child’s best interests” (at para 47).

[33] I pause here to note that, unlike in Ojeikere, here there are no issues of custody or child welfare.

[34] At paragraph 47 of Ojeikere, the court stated that, under the Sengmueller test, fresh evidence is admissible if the party can show that the evidence

1. is credible;

2. could not have been obtained by reasonable diligence before trial or motion; and

3. would likely be conclusive of an issue on the appeal.

[35] The court noted that under the Palmer test, evidence is admissible if believed, and when taken with the other evidence, could be expected to affect the result.

[36] The Respondent submits that the fresh evidence put forth by the Applicant does not satisfy either the Palmer or Sengmueller tests because it lacks credibility by virtue of its incompleteness and would not be conclusive of an issue in this appeal.

[37] The Applicant submits that her current financial situation ought to be taken into account on this appeal. In oral argument, the Applicant also attempted to lead evidence that the Respondent had not been forthcoming to the court about his financial situation.

Analysis

[38] The Respondent acknowledges, and I agree, that the Applicant’s financial circumstances are relevant. I also find as a fact that the Motion judge had that evidence: the record before her contained evidence concerning the Applicant’s employment and income information for the prior year (2018) and the Applicant’s employment situation in 2019, when she heard the motions.

[39] In oral submissions on this appeal, it became clear that the “fresh” evidence that the Applicant sought to have admitted related to the child’s dental and orthodontic expenses incurred by the Applicant since the hearing of the motions. However, the amounts involved were very minimal and the Applicant was entitled to seek reimbursement of those expenses from the Respondent or his extended health insurer, but had not done so.

[40] The other “fresh” evidence put forth by the Applicant relates to her claim that her income is lower now than it was before the motion judge and that she has no ability to pay any cost award. Even considered together, the New Affidavit and the Applicant’s factum (with attached invoices and paystubs) fail to provide a complete or accurate picture of the Applicant’s financial situation. The Applicant’s “fresh” evidence fails to meet the credibility test: it is incomplete and, with respect to the dental and orthodontic expenses, somewhat misleading. Also, the Applicant inappropriately sought to put more new evidence before the court by way of her oral submissions on the motion and appeal.

[41] With respect to second branch of the Sengmueller test, it goes without saying that before the motion, the Applicant could not have obtained evidence about her future financial situation. While flexibility to admit new evidence may be demanded in custody or child welfare cases, those are not the issues before this court. Moreover, to accept “fresh” evidence from the Applicant would create an unfairness to the Respondent in that he would not be afforded a similar opportunity to lead evidence of his current finances – including evidence respecting the financial impact on him, if any, of having to absorb his legal costs – while he supports the couple’s older child with no financial assistance from the Applicant.

[42] Applying the third branch of the test, I cannot conclude that the fresh evidence put forth by the Applicant would have been determinative or affected the outcome of the hearing before the motion judge. I reach that conclusion on the basis that: i) the motion judge knew of the Applicant’s job loss when she made the Cost Decision; and, ii) it is reasonable to conclude that the motion judge considered the Applicant’s financial situation in making her Cost Decision, which included her (then) unemployment, as well as the Applicant’s 2018 employment income of over $69,000, significantly supplemented by the non-taxable child support and spousal support[^1] paid by the Respondent.

Disposition: Motion to admit fresh evidence

[43] For the reasons set out above, I find that the Applicant has failed to satisfy either the Palmer or the Sengmueller test for the admission of fresh evidence.

[44] I do not admit the fresh evidence contained in the New Affidavit or found in the Applicant’s factum.

(2) Merits of the Appeal

a. Costs of the Applicant’s motion for leave to late file her Amended Response

[45] There is no doubt that the Applicant was entirely successful on her interlocutory motion for leave to late-file her Amended Response. Absent other factors, r. 24 dictates that the Applicant is presumptively entitled to her costs of that motion.

[46] The Respondent submits that the Applicant ought not to receive her costs of that motion given the nature of the relief: the Applicant sought to file the Amended Response some 32 months after the Respondent’s Motion to Change and only one day prior to the Respondent’s summary judgment motion.

[47] There is merit to the Respondent’s argument: the Applicant required leave because of her own delay in serving her Amended Response. I would not disturb the motion judge’s order to award no costs to the Applicant on her leave motion.

[48] However, in granting leave, the motion judge held that the Respondent ought not to have opposed the late filing of the Applicant’s Amended Response. For that reason, and that leave was granted, the Respondent is not entitled to his costs relating to that motion.

[49] In submissions on the appeal, the Respondent estimated that his Bill of Costs included time for the leave motion totalling, at most, 6.4 hours. This time will be deducted from the Respondent’s Bill of Costs, when determining costs for the summary judgment motion.

Disposition: Costs on Applicant’s Motion for Leave to file Amended Response

[50] For the reasons set out above, I do not disturb the motion judge’s award of no costs to either party on the Applicant’s motion for leave to file an Amended Response.

b. Respondent’s Costs on the motion for Summary Judgment

[51] As stated in my ruling on leave to appeal, I found that the motion judge erred in principle and was plainly wrong when she equated the Applicant’s motion for leave to file the Amended Response with the Respondent’s motion to dismiss the relief sought by the Applicant: the former was interlocutory and procedural whereas the latter was substantive and finally disposed of the proceeding.

[52] Whether success is truly divided was considered very recently by Pazaratz J. in F.K. v. A.K. and CAS of Hamilton, 2020 ONSC 4927, who stated the following at para. 21:

[21] Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly “divided” 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 that required adjudication. Jackson v. Mayerle; Slongo v. Slongo; Lippert v. Rodney; Norton and Norton, 2017 ONSC 5406 (SCJ).

[53] As stated in my reasons granting leave to appeal, it was an error in principle for the motion judge to conclude that there had been divided success because the Applicant had been granted leave to late-file the Amended Response when the relief claimed by the Applicant in that pleading was dismissed in its entirety.

[54] The only substantive issue before the motions judge was whether the Applicant was entitled to receive retroactive and ongoing contribution to the parties’ childrens’ extraordinary expenses,beyond what had been provided for in the Sherwood Order. That claim was dismissed.

[55] By any measure, the Respondent was entirely successful on the central, substantive issue, that finally disposed of the litigation between the parties.

[56] I adopt the statement of the law as set out by Pazaratz J. in F.K., at para. 13:

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, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (SCJ); Ajiboye v. Ajiboye. Rule 18(14) sets out the consequences of a party’s failure to accept an offer to settle that is as good or better than the hearing’s result.

[57] However, despite finding “that the Respondent had made multiple offers to settle, all of which would have put the Applicant in a better position than after judgment was rendered on the motions” (at para. 12), in the Costs Decision the motion judge failed to engage in an analysis of r. 18(14) of the FLR. I undertake that analysis below.

Offers to Settle

[58] In his costs submissions before the motion judge, the Respondent listed the offers to settle exchanged by the parties. These included

(i) January 8, 2018: Respondent’s offer (Section D) to make ongoing section 7 contributions of $194 CAD per month for the Child Natalie and $616 CAD per month for the child Daniel, if Daniel returned to Ontario [Daniel did not]. The provisions of Section D were severable;

(ii) April 18, 2018: Respondent’s offer to settle was made repeating the terms set out in Section D of the offer dated January 8, 2018;

(iii) May 18, 2018: Applicant’s offer seeking $14,000 CAD in retroactive section 7 expenses and $500 per month for the extraordinary expenses for both children;

(iv) November 26, 2018: Respondent’s new offer [having kept open for acceptance his prior offer] by which the Respondent offered to pay retroactive section 7 expenses in the amount of $10,800 CAD plus an appropriate apportionment of ongoing section 7 expenses as determined by the parties. This offer stipulated that, if accepted after December 17, 2018, the Applicant would be required to pay the Respondent’s costs incurred from December 1, 2018 to the date of acceptance;

(v) January 8, 2019: the Applicant offered to accept $18,000 CAD which included a lump-sum payment of $10,000 CAD and the balance to be paid in monthly instalments of $225 CAD until the outstanding amount was paid. In addition, the Respondent was to pay all of Daniel’s extraordinary/extracurricular expenses and the Applicant would pay for those of Natalie, except that the parties would share equally (50/50) the costs of any of Natalie’s medical, vision or orthodontic patient care beyond any insurance coverage; the Respondent was also to keep Natalie on his health and dental benefits through available through his employment; and

(vi) January 8, 2018: Respondent’s counsel wrote advising that the Respondent’s offer of November 26, 2018 remained in effect but, alternatively, offering a settlement whereby the Respondent would settle on the basis that costs would be payable by either party if the Applicant’s section 7 claim was dismissed and the Applicant provided disclosure of specific financial documents. This offer was not accepted and was withdrawn on February 14, 2019.

[59] At the time of the hearing before the motion judge, the Respondent’s offer of November 26, 2018 remained open for acceptance, as did the Applicant’s counter-offer dated January 8, 2019.

[60] As stated above, the motion judge dismissed in their entirety the Applicant’s claims for payment of any retroactive or ongoing section 7/extraordinary expenses.

[61] As the Respondent obtained an order on the motion that was more favourable than his offers and satisfied the other conditions listed under r. 18 (14), unless the court orders otherwise, he is entitled to his costs to the date the offer was served and full recovery of costs from that date.

[62] The motion judge “ordered otherwise” because the Respondent had offered to settle the Applicant’s claim for section 7/extraordinary expenses, which was evidence that the Respondent was well aware of the Applicant’s claim and that he acted unreasonably when he opposed the late-filing of the Applicant’s Amended Reply (see Costs Decision, paras. 10 and 11).

[63] The Ontario Court of Appeal in Serra v. Serra[^2] has outlined the approach that is to be taken with respect to costs:

Modern costs rules are designed to foster 3 fundamental purposes: (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: Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 OR (3D) 330, at para 22.

[64] In its more recent decision in Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625, the court added as a fourth fundamental purpose of costs to those identified in Serra: the need to ensure that cases are dealt with justly (para. 10). The court also reiterated the principles found in rule 24 (12) that when setting the amount of costs, emphasis must be on reasonableness and proportionality.

[65] As observed by Pazaratz J. in Jackson v. Mayerle, 2016 ONSC 1556, 73 R.F.L. (7th) 278, notwithstanding the provisions of the FLR, an award of costs must take into consideration both success and reasonableness (at paras. 19–20).

[66] While it was open to the motion judge to consider the reasonableness of the parties in awarding costs, I conclude that it was an error in principle for her to use the Respondent’s offers to settle the Applicant’s claim for section 7 expenses as the basis upon which to conclude he was acting unreasonably and to justify depriving the Respondent of the costs to which he would otherwise be entitled under r.18 (14).

[67] I conclude that the Respondent was acting reasonably and in accordance with the principles set out in Serra when he offered to settle the Applicant’s claims, despite the fact that the Applicant had not raised those claims in her pleading, and did not file her motion to amend her pleading until one day before his motion for summary judgment.

[68] I conclude that the provisions of r.18 (14) operate to entitle the Respondent to his costs, subject to a determination of an amount that is reasonable and proportionate.

What is a reasonable amount?

[69] In submissions made on behalf of the Applicant before the motion judge, the Applicant did not dispute the reasonableness of the hourly rates charged by the Respondent’s counsel, but only disputed the reasonableness of the time spent. Attached as “Exhibit “A” to her costs submissions to the motion judge, the Applicant calculated the Respondent’s “reasonable” partial indemnity costs at $11,464.98, inclusive of disbursements and HST. In rough numbers, that equals just over 50% of the $21,021.45 in partial indemnity costs claimed by the Respondent.

[70] I find the Applicant’s 50% reduction of the time spent by the Respondent’s counsel to be arbitrary, but use the Applicant’s figure of $11,464.98 as her view of a reasonable award.

[71] As noted above, the time recorded in the Respondent’s Bill of Costs relating to the leave motion must be deducted from the costs claimed by the Respondent for his motion for summary judgment. After that deduction, I calculate the Respondent’s fees on the summary judgment motion (before taxes and disbursements) at $21,697 for full indemnity and $15,772 for partial indemnity.

[72] The Respondent’s Bill of Costs shows that tasks were delegated to more junior counsel and/or clerks whose hourly rates were lower than lead counsel. The hourly rates used are not disputed. As for the time spent, the Respondent brought a motion for summary judgment, rather than proceeding to a trial. His success on that motion speaks to the reasonableness of proceeding in that manner. Notwithstanding the foregoing, I find that the costs claimed are disproportionate for a one-day motion. Of particular note are the full indemnity fees of $8,508 charged for “file administration” and a further $8,312.85 for the pleadings. I also find the fees of $3,400 charged for the preparation of the costs submissions to be disproportionately high. I conclude that the costs claimed by the Respondent exceed a fair and reasonable amount for the Applicant to be ordered to pay.

[73] In fixing costs, the court must also consider the expectation of the losing party as to what they might be ordered to pay. In his offer of January 8, 2019, the Respondent did tell the Applicant that his costs were already at $8,000, which he was prepared to waive if the Applicant agreed to dismiss her claims. That, and the Applicant’s costs submissions to the motion judge, provide some evidence as to what the Applicant might reasonably have expected to pay in costs, if she were unsuccessful.

[74] The Respondent agrees that the Applicant’s financial circumstances were a relevant consideration when determining what is reasonable and proportionate. The Applicant argues that she has no ability to pay costs.

[75] The Applicant’s submissions that she has no or a limited ability to pay costs is not borne out by the evidence that was before the motion judge. However, even if I were to accept the Applicant’s submissions that she has no ability to pay costs, that cannot shield her from liability for costs when she has acted unreasonably (see Gobin v Gobin, 2009 ONCJ 278, 70 R.F.L. (6th) 209).

[76] The motion judge found that the Applicant has acted unreasonably. In the Reasons, the motion judge found that on her own evidence, the Applicant had failed to demonstrate a material change in circumstances that would justify the court revisiting the issue of the Respondent’s contribution to the children’s extraordinary expenses (at para. 28). At para. 36, the motion judge found that the Applicant’s evidence on the issue of material change in circumstances was “internally inconsistent and contradictory.” Finally, at para. 39, the motion judge found that “the Applicant’s position that she continued to expect the Respondent to pay or contribute something towards the children’s extraordinary expenses after August 2014 defies logic and common sense, and the evidence presented on the motion.”

[77] On this appeal, the Applicant again asserted that latter argument. Also, notwithstanding the clear finding by the motion judge that there was no basis to interfere with the Sherwood Order, and the dismissal of the Applicant’s claim, in submissions on this appeal the Applicant asserted that she was still entitled to pursue a claim for ongoing extraordinary expenses.

[78] Based on the clear findings of the motion judge, I find that the Applicant’s financial situation ought not to shield her from liability to pay costs.

[79] While it does not affect my decision on this appeal, I do observe that the Applicant’s continued stance on the very claim that was dismissed by the motion judge may explain the Respondent’s many efforts to try to settle with the Applicant, rather than to continue to incur legal fees to defend the Applicant’s unrealistic claim.

[80] The Applicant also submitted that any costs award would impair her ability to provide for the child who lives with her. The Respondent responded to those submissions by asserting that he, too, is supporting a child who lives with him, for whom the Applicant does not pay support. The Respondent submitted that the costs he incurred to successfully defend the Applicant’s claim has an impact upon his ability to provide for the child who lives with him. I conclude that these arguments neither help nor hinder either party.

[81] Even accepting that the parties are not in an equal financial position, I conclude that it is fair and reasonable, and in keeping with the goals of costs awards, for the Applicant to pay costs that are fixed in accordance with the FLR and applicable case law.

Disposition: Costs on the Respondent’s Motion for Summary Judgment

[82] Applying the factors set out under r.18 (14) and r. 24 and the applicable case law, I conclude that a reasonable amount in costs to be awarded to the Respondent on his summary judgment motion to be $14,000 plus disbursements of $271.05 and HST of $1,855.24 ($14,271.05 x 13%), for a total award of $16,126.29.

[83] As the motion relates to child support, the costs awarded shall be enforceable pursuant to the provisions of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, as amended.

Costs

[84] As the successful party on this appeal and on the motion for leave to appeal, the Respondent is presumptively entitled to his costs. I would urge the parties to attempt to agree on costs. However, if they cannot do so, the Respondent is to serve and file his written submissions of no more than 3 pages, double-spaced, in addition to any pertinent offers and draft bill of costs, within 21 days of the date of the release of this decision. The Applicant shall deliver her responding submissions of no more than 3 pages, double-spaced, in addition to any pertinent offers and draft bill of costs, within 14 days of the service upon her of the Respondent’s costs submissions.

[85] If no submissions are received within 35 days of the date of the release of this decision, the parties will be deemed to have resolved the issue of the costs both of this Appeal and the motion for leave to appeal, and costs will not be determined by me.

Justice L. Sheard

Date: August 26, 2020

[^1]: The parties agree that, as the Respondent is not a Canadian resident, his spousal support payments are neither a deduction from his income, nor must they be reported in the Applicant's income for income tax purposes.

[^2]: See Serra v. Serra, 2009 ONCA 395, at para. 8, 66 R.F.L. (6th) 40.