Superior Court of Justice - Ontario

COURT FILE NO.: FS-12-413 DATE: 2020/09/28

RE: A.L., Applicant AND: D.B., Respondent

BEFORE: Mr. Justice D.A. Broad

COUNSEL: Applicant – Self-represented MacKenzie J. Dean, Counsel for the Respondent

Costs Endorsement

[1] The parties have evidently been unable to settle the question of costs in reference to the respondent’s motion for summary judgment and the applicant’s cross-motion.

[2] As directed in my Endorsement, the parties have now delivered written submissions on costs.

[3] The respondent states that she was wholly successful on the motions in respect of the issues of custody, access, life insurance, medical and dental benefits, and a no-contact order. She seeks costs on a full recovery basis commencing August 8, 2019 in the sum of $28,212.52 comprised of $23,421.50 in fees, HST on fees in the sum of $3,044.80, disbursements in the sum of $1,545.33 and HST on taxable disbursements in the sum of $200.89.

[4] The respondent points to two Offers to Settle which she served on August 8, 2019 and January 23, 2020, respectively. The Offer to Settle of August 8, 2019 was stated to be severable. Neither Offer was withdrawn.

[5] The respondent says that, in respect of the August 8, 2019 Offer to Settle, she received an order that was more favourable to her offer on the issue of access and matched her offer on the issue of custody, and had mixed success on the issue of a restraining order, as the applicant was ordered to have no contact with the respondent and the children.

[6] With respect to the Offer to Settle dated January 23, 2020 the respondent says that she was successful on all issues. The respondent states that her full indemnity costs from the date of the January 23, 2020 Offer to Settle comprised $21,760.33.

[7] The respondent submits that the applicant recklessly expanded the scope of the litigation, including, making an unnecessary claim that the children had been abducted by the respondent and her family despite clear evidence to the contrary.

[8] She also submits that the applicant’s behaviour and refusal to provide disclosure has resulted in the need for a trial on the issues of imputation of income to the applicant and the quantum of child support. Moreover, she submits that the applicant’s behaviour has had a direct negative impact on the respondent’s reputation and the children’s well-being as his unfounded allegations of child abduction form part of the public record and continue to be broadcast in the applicant’s social media accounts.

[9] Unfortunately, the applicant, in his written submissions on costs, did not address the respondent’s costs claim in respect of entitlement, scale and quantum, but rather sought to re-litigate the issues on the motions and to recite unsupported allegations of wrongdoing against the respondent.

[10] It is noted that the applicant did not serve any offers to settle. Neither did he suggest that he would suffer financial hardship if he were ordered to pay costs to the respondent.

Guiding Principles

[11] Pursuant to subrule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behaviour in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.), 2003 CanLII 18880, (2003), 67 O.R. (3d) 181 (Ont. C.A.) at para. 42).

[12] Rule 18 deals with the impact of offers to settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that, unless the court orders otherwise, a party who makes an offer at least one day before the motion, and obtains an order as favorable as, or more favorable than the offer, is entitled to costs to the date that the offer was served and full recovery of costs from that date. Even if subrule (14) does not apply, the court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[13] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 CanLII 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of subrule 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[14] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants (see Royal Bank of Canada v. Roland Home Improvements Ltd., [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[15] Although the case law requires the Court to consider the means of the parties, the limited financial resources of a party against whom an award of costs is sought does not necessarily afford immunity from a costs order, but, may affect the scale or quantum of costs (see Parsons v. Parsons (2002), 2002 CanLII 45521 (ON SC), 31 R.F.L. (5th) 373 (Ont. S.C.J.) at para. 12).

[16] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Analysis

[17] It is clear that the respondent was the successful party on the motions. Moreover, the record indicates that the respondent was focused on settlement, whereas the applicant was not. He appears to have been focused on unrelated and unfounded allegations of child abduction.

[18] The respondent matched or exceeded her Offers to Settle on all issues with the exception of the restraining order which she sought and her motion for summary judgment with respect to the imputation of income to the applicant for the purpose of child support. However, the respondent was successful in obtaining a no-contact order without prejudice to her right to reapply for a restraining order in the event of breach by the applicant. In addition, the issue of imputation of income was ordered to trial largely due to the failure of the applicant to provide proper disclosure. The court found simply that the evidentiary record was not such as to fairly resolve the issue on the motion.

[19] The court’s obligation is to ensure that a costs award is fair, reasonable and proportionate to the issues that were in dispute. Unfortunately, the absence of any meaningful submissions on costs by the applicant has made it impossible to gauge what the applicant’s reasonable expectations may have been with respect to the costs.

[20] As indicated above, rule 24(11) of the Family Law Rules provides that in setting the amount of costs, the court shall consider a number of factors, including the importance, complexity or difficulty of the issues and the reasonableness or unreasonableness of each party’s behaviour in the case.

[21] The evidence indicated that the issues were highly important to the respondent and to the children, the issues were complex, involving detailed evidence from an OCL clinician as well as a child psychiatrist, and difficult. Moreover, the respondent, in displaying a settlement-focused approach acted reasonably, whereas the applicant’s approach, in seeking to divert attention away from the real issues, failing to make any attempt to settle and failing to provide full, complete and timely disclosure respecting his income, acted unreasonably.

[22] I find no principled ground to deny the respondent’s claim for costs on a full indemnity basis.

Disposition

[23] It is therefore ordered that the applicant pay to the respondent costs fixed in the sum of $28,212.52, inclusive of fees, disbursements and HST.

[24] Approval of the formal order to give effect to this disposition by the applicant is waived.

D.A. Broad, J.

Date: September 28, 2020