Court File and Parties

Court File No.: FC-19-D-195 Date: 2021/06/30 Superior Court of Justice - Ontario

Re: Stephen Hiroshi Brown, Applicant And: Erin Densmore, Respondent

Before: Justice M. Fraser

Counsel: T. Pompilio, Counsel for the Applicant C. Craig, Counsel for the Respondent

Heard: In writing

Endorsement

[1] This is a costs decision arising out of a motion and cross-motion brought by the parties and heard on October 20, 2020. The applicant sought an order for interim joint custody of the parties’ two children as well as an order providing that there be a shared parenting arrangement based upon a modified 2/2/3 split over a six-week rotating schedule. The applicant also sought an order permitting certain funds which comprised part of the proceeds from the sale of the matrimonial home to be paid out to the parties.

[2] The respondent opposed the applicants request for joint custody. She argued that this issue should be deferred until trial. By way of cross-motion, she sought an order providing her with the primary parenting time of the children and asked for a parenting arrangement which provided the applicant with less parenting time than he was seeking. She also asked for an order requiring the parties to have a section 30 assessment conducted.

[3] In the result, I declined to make a temporary custody order. I ordered a parenting arrangement which provided the applicant with less parenting time than he sought but more parenting time than proposed by the applicant. I ordered that a section 30 assessment be conduct and I ordered that funds from the proceeds from the sale of the matrimonial home be released.

[4] Both parties ask for costs.

[5] Costs in family law proceedings are governed by the Family Law Rules (the “Rules”). Subrule 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.

[6] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that 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 subrule 2 (2) of the Rules.

[7] Costs can be used to sanction behaviour that increases the 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. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 2003 S.C.C. 71, paragraph 25; Gordon v. Wilkins, 2020 ONCJ 199 (O.C.J.), at paragraph 4.

[8] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[9] An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94; Gordon v. Wilkins, 2020 ONCJ 199 (O.C.J.), at paragraph 6.

Analysis:

[10] In this instance, I consider the parties’ success on these motions divided.

[11] The applicant did make an offer to settle. However, rule 18 of the Rules does not apply, in my view, as it can not be said that the applicant obtained a result which was as favourable as the terms of the offer.

[12] The main issue in dispute concerned the parenting arrangement. Neither party achieved a result which was as favourable as their position on this issue.

[13] The issues were not unduly complex. The issues were important to the parties however.

[14] I am not satisfied that the number of affidavits filed to support the parties in their position was necessary. However, both parties filed such affidavits.

[15] Absent either party having obtained a result which was more favourable than an offer, I find that there should be no order as to costs.

M. Fraser J.

Date: June 30, 2021