COURT FILE NO.: FS-19-41890

DATE: 2021 08 10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: K.A., Applicant

AND:

R.L., Respondent

BEFORE: Conlan J.

COUNSEL: Annette Nyland, Counsel for the Applicant

Andrew Kania, Counsel for the Respondent

ENDORSEMENT ON COSTS

I. Introduction

The Motion

[1] A Motion was brought by the Applicant mother, K.A., seeking an “Order that the Order of the Honourable Justice Miller, dated February 3, 2021, be enforced”.

[2] That Order of Miller J. was made on consent, in writing, and required the Respondent father, R.L., to produce specified disclosure (items 2 through 28).

[3] The Motion was argued at Court on March 29, 2021 and decided by this Court’s Endorsement reported at K.A. v. R.L., 2021 ONSC 2380. The Motion was allowed in part, and costs submissions were invited from the parties if they could not be agreed on. This Court stated as follows at paragraph 21 of its Endorsement: “[b]esides the five items outlined above, without spending hundreds of hours pouring over every document that has been disclosed to date, which I am not prepared to do and which I ought not to do, particularly given that questioning is scheduled to take place in the very near future, I am not persuaded on a balance of probabilities that R.L. has failed to comply with the Miller J. Order”.

The Positions of the Parties on Costs

[4] Each side claims success on the Motion.

[5] The mother seeks costs on a full indemnity basis in the total amount of about $26,000.00, or alternatively partial indemnity costs in the amount of approximately $17,000.00, total.

[6] The father seeks costs on a substantial indemnity basis in the total amount of about $11,500.00.

II. Analysis and Conclusion

The Law on Entitlement to Costs

[7] I concur with and adopt the following as set out by Justice Chappel at paragraphs 8 through 14 of Her Honour’s decision in Arthur v. Arthur, 2019 ONSC 938, reproduced below.

[8] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that subject to the provisions of an Act or Rules of Court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. This section must be read in conjunction with Rule 24 of the Family Law Rules, which sets out a number of principles to guide the court in the exercise of its discretion in the Family Law context.

[9] The traditional purpose of a costs award was to indemnify the successful party in relation to the expenses they incurred in either defending a claim or in pursuing a valid legal right (Ryan v. McGregor (1926), 1925 CanLII 460 (ON CA), 58 O.L.R. 213 (Ont. C.A.), at p. 216); British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.), at paras. 21-24 (“Okanagan Indian Band”). However, the Supreme Court of Canada underlined in Okanagan Indian Band that developments in the law respecting costs have significantly broadened the purpose of costs awards such that they have become a valuable tool for furthering the efficient, orderly and fair administration of justice (at para. 25). It noted that costs awards are a means of sanctioning parties who refuse to engage in concerted settlement efforts, or who engage in behaviour that increases the duration and expense of litigation or that is otherwise unreasonable or vexatious (at paras. 25-26). The court also established that costs awards are an important tool for ensuring meaningful access to justice for litigants who seek to vindicate a legally sound legal position but who have limited financial means to do so (at para. 26). The Ontario Court of Appeal subsequently reiterated the importance of costs awards as a tool for promoting efficient, fair and meaningful access to justice in Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.) and Serra v. Serra, 2009 ONCA 395 (C.A.). In those cases, the court summarized that modern rules respecting costs aim to foster the following three 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.

(see also Mattina v. Mattina, 2018 ONCA 867 (C.A.))

[10] While these three objectives provide a general framework for the analysis of costs, the courts must also ensure that the law of costs does not become an impediment to the pursuit of justice. Accordingly, in seeking to advance these objectives, the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome cost consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.)).

[11] In addressing the issue of costs, the court must also be guided by the primary objective of the Family Law Rules as set out in Rule 2(2), which is to enable the court to deal with cases justly (Mattina, at para. 10).

[12] The Court of Appeal has highlighted the discretionary nature of costs awards, and the importance of considering all relevant factors based on the unique facts of each case (Andrews v. Andrews, 1980 CanLII 3619 (ON CA), [1980] O.J. No. 1503 (C.A.)). It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181, 2003 CarswellOnt 3606 (C.A.); Fielding v. Fielding, 2015 ONCA 901 (C.A.)).

[13] The first issue to be determined in addressing costs is whether either party is liable to pay costs. Rule 24 of the Family Law Rules sets out a number of factors relevant to the preliminary issue of liability. Rule 24(10) establishes the general principle that the court should promptly after dealing with a step in the case decide in a summary manner the issues of entitlement and quantum of costs, or alternatively should expressly reserve the decision on costs for determination at a later stage in the case. However, Rule 24(11) provides that the court’s failure to act pursuant to Rule 24(10) in relation to a step in the case does not prevent the court from awarding costs in relation to the step at a later stage in the case.

[14] Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. This Rule must be considered in conjunction with Rule 24(6), which 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. The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it 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 which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)).

[8] I would add to paragraph 14 above that it is not uncommon for courts to award no costs to either side where it concludes that success on the motion was fairly equally divided.

The Law as Applied to our Case

[9] There will be no costs of the Motion awarded to either side.

[10] In my view, (i) there was no bad faith on the part of the father, as alleged by the mother’s counsel in submissions on costs, and (ii) there is no application here of subrule 18(14) of the Family Law Rules, as implied by the father’s counsel in submissions on costs, and (iii) success on the motion was fairly evenly divided among the parties.

[11] On the latter point, although it is true that many more of the items of disclosure sought by the mother were not ordered by this Court as compared to the number of disclosure items that were ordered by this Court, it is also true that the five items that were ordered were likely the most important ones – see paragraph 22 of this Court’s Endorsement dated March 29, 2021.

[12] I think that, in all of the circumstances, the most fair, just, and reasonable disposition on costs of the Motion is that each side be responsible for her/his own costs. So ordered.

(“Original signed by”)

Conlan J.

Date: August 10, 2021