COURT FILE NO.: FS-20-42910 DATE: 2021 03 01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N., Applicant AND: A., Respondent R., Respondent

BEFORE: Conlan J.

COUNSEL: Alla Koren, for N., the Applicant Matthew J. Armstrong, for A., the Respondent Ron Shulman, for R., the Respondent

ENDORSEMENT on Costs

I. Introduction

The Motions

[1] On December 10, 2020, this Court heard two Motions. To understand what the Motions were all about, set out below are paragraphs 7 through 10 of the decision reported at N. v. A., 2020 ONSC 7743.

[7] One Motion was brought by father N. – he wants, principally, child support for X to be paid by A. He says it should be $1184.00 monthly starting March 1, 2020, based on a gross annual income for A. of $134,839.00, plus he wants her to pay half of specified section 7 expenses.

[8] The other Motion was brought by father R. (why one Motion could not have been brought by both fathers, I do not know and did not bother to ask). R. wants basically the same thing – child support for Y to be paid by A. He says it should be $1101.00 per month commencing March 1st, based on an income of $124,285.00. And he wants A. to pay 59.4% of section 7s.

[9] Each father also advances in his Motion some other ancillary relief.

[10] The mother, A., admits her obligation to pay child support for her two children, but the specifics being asked for she disputes.

The Court Order

[2] The two fathers were largely successful on their Motions. The mother, A., was ordered to pay support for each child, starting on September 1, 2020, in the amount of $1047.00 per month, plus fifty per cent (50%) of each child’s section 7 expenses.

The Parties’ Positions on Costs

[3] The parties have been unable to settle the issue of costs, and this Court has reviewed their respective written submissions. Succinctly stated, the father, N., wants costs in the amount of $12,500.00 on a full indemnity basis. He relies, in part, on the fathers’ joint Offer to Settle dated September 30, 2020, which Offer would have had the mother pay $900.00 per month in support for each child starting March 1, 2020, plus half of the section 7 expenses for each child. The father, R., also asks for costs on a full indemnity basis, totalling $14,000.00. He, likewise, relies on the said joint Offer to Settle. The mother, A., suggests that no costs be ordered because of alleged divided success and in light of her two Offers to Settle dated December 4 and December 9, 2020.

II. Decision

The Basic Legal Principles on Costs

[4] Costs ought to be dealt with expeditiously, and the overall objective is to make an award that is fair, just, reasonable, and proportionate in all of the circumstances of the case. There is no exhaustive list of factors that the Court can consider, however, some of the factors are outlined in Rule 24 of the Family Law Rules. As well, any offer to settle can be considered by the Court, regardless of whether it meets the requirements under sub-rule 18(14). Modern costs orders are designed to partially indemnify successful litigants, encourage settlement, and discourage bad or inappropriate conduct.

The Result

[5] There is no merit to the fathers’ requests for full indemnity costs, and there is equally no merit to the mother’s request for no costs. Rather, this is a straightforward application of the presumption that the successful parties, the fathers, are entitled to some costs. The only legitimate debate is what quantum for each.

[6] Sub-rule 18(14) is not in play; the fathers did not achieve a result that is as favourable or more favourable than their joint Offer to Settle dated September 30, 2020. Had they foregone the retroactivity argument, they may have forced this Court’s hand in awarding substantial indemnity costs.

[7] This is an instance for partial indemnity costs in favour of each father. I see nothing excessive or unreasonable about the hourly rates or the time spent by the fathers’ respective counsel, and thus, I will be using the approximate figures contained in their Bills of Costs, reduced somewhat on account of some clear overlap between the two Motions.

[8] This Court, therefore, orders as follows:

i. within thirty calendar days after March 1, 2021, the mother, A., shall pay to the father, N., costs in the total amount of $5250.00; and

ii. by that same deadline, the mother, A., shall pay to the father, R., costs in the total amount of $6000.00.

[9] The $5250.00 is half of the full indemnity costs sought by N., less a further $1000.00, while the $6000.00 is the partial indemnity figure contained in the Bill of Costs filed by counsel for R., less a further $1000.00.

Conlan J. Date: March 1, 2021