Introduction

[1] The Applicant husband (“the husband”) brought a motion for various relief, including a stay of two temporary support orders, one for child support and a second for unallocated payments in lieu of spousal support. He also sought the release to him alone of funds held in trust from the sale of the parties’ matrimonial home, as well as disclosure from the Respondent wife (“the wife”). Because it could not be heard in 59 minutes or less, I had to bifurcate the husband’s motion, dealing with the support and the release of funds issues first and then returning to deal with disclosure. The parties sorted out all but three sets of disclosure, with the Respondent providing the disclosure agreed upon. I determined the disclosure not agreed upon.

[2] I granted the Applicant the stay of the temporary support orders and further ordered the release of $35,000 to each party from funds held in trust. I found a material change in circumstances in that the husband had no income at this time and thus no ability to pay support, whether prospectively or in regard to current arrears. Since I did not find him intentionally unemployed or underemployed at the time, I did not impute income to him. Thus, I did not require him to pay support at that time. I stayed the “support” terms of the two temporary orders, subject to a review if there is a change in his health and/or employment status and a requirement that he provide certain disclosure. A further term was the release of $35,000 to each party from the funds held in trust.

[3] They key issue in this motion and the one that occupied the majority of the time was the stay of the support motions. The stay represented success for the husband while the release of the funds favoured the wife. The husband had argued for the release of one half of the net proceeds of the sale of the matrimonial home, or $216,117 to himself and nothing to the wife. He argued that, based on his NFP statement, he is entitled to all of the home proceeds. I rejected that claim, particularly in light of the vast reduction of standard of living that the wife and child were experiencing with the loss of his support payments. Nonetheless, as the husband argued, that issue did not occupy a great deal of the court’s time.

[4] The parties resolved most of the disclosure issues on their own. That resolution involved the wife providing much of the disclosure requested. With regard to the three remaining areas of disclosure, it was unclear whether any of the three sets of documents exists or is available to the wife. Nonetheless I ordered that she take steps to attempt to obtain the documents, recognizing that she may not be able to do so.

[5] The husband now seeks his full indemnity costs of $17,986.37, despite the facts that he neither “beat” an offer nor can he point to bad faith by the wife. While he offers an alternative, substantial indemnity figure of $13,422.27, he fails to even provide a partial indemnity figure. He should not assume that the court will accept his argument about the scale of costs to which he is entitled, considering that the general standard of costs is partial indemnity: Beaver v. Hill, 2018 ONCA 840. That standard is subject to enhancement in the case of the application of r. 18(14), a finding of bad faith and, to a lesser extent, a finding of unreasonable behaviour.

[6] The husband argues that he is presumptively entitled to costs because he was successful: r. 24(1); although his submission fails to mention the court’s discretion in the face of divided success: r. 24(6). He adds that the wife’s position was so unreasonable that it amounted to behaviour that it “borderlines [sic] bad faith”. He also pointed to what he described as the unreasonableness of the wife’s offer to settle, which involved a continuation of support payments and arrears and the fact that she had been aware of the issues in the motion for some time.

[7] The wife does not deny the husband’s presumptive right to costs. However she asks that no costs be awarded in light of the state of her finances, deprived as she is of any support while supporting the parties’ child. She also worries about an uneven playing field. While she does not cite the factor of her reasonable costs expectations, she offers her own bill of costs. That bill contains figures that are approximately 60% of those of the husband ($10,776.86 full indemnity and $8,082.60 partial indemnity).

Relevant Costs Authorities

[8] I previously set out a full description of what I understand to be the applicable legal principles that apply to the determination of costs in a proceeding in two of my recent decisions, DeSantis v. Hood, 2021 ONSC 5496 and Spadacini-Kelava v. Kelava, 2021 ONSC 2490. I adopt and rely on them for the purpose of this costs endorsement.

[9] In doing so, I wish to highlight a few authorities and principles. Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court broad discretion to determine costs. Rule 18 governs the reliance on formal and written offers to settle, particularly if a party obtains as or more favourable a result than their offer calls for: r. 18(14). However I may consider any written offer to settle: r. 24(16).

[10] Rule 24 sets out the factors that a court must rely upon in determining costs in family law proceedings. In particular, I refer to the factors set out in r. 24(12), as follows:

Setting Costs Amounts

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[11] In addition, I allude to the comment of the Court of Appeal for Ontario in Beaver v. Hill, 2018 ONCA 840, at para. 10. There, the court clarified that proportionality and reasonableness, the two key factors set out in r. 24(12)(a), are the touchstone considerations to be applied in fixing the amount of costs in family law matters. Earlier, in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) at para. 24, the Court of Appeal for Ontario concluded that costs awards should reflect "what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties." The calculation of the reasonableness of counsel fees must be considered “from the perspective of the reasonable expectations of the losing party” That means that this part of the consideration is not “what the respondent's counsel was entitled to charge his or her own client, but rather what amount was reasonable to impose upon the loser”: Coldmatic Refrigeration of Canada Ltd. v.Leveltek Processing LLC, 2005 1042 (ON CA), [2005] O.J. No. 160 (Ont. C.A.) at para 8.

[12] That being said, I am entitled to order enhanced costs when I find unreasonable behaviour by a party (r. 24(12) (a)). I may consider each party’s “behavior in relation to the issues from the time they arose”: r. 24(5). Those enhanced costs may be based on the party’s conduct of the litigation, including whether his or her legal position was unreasonable: Climans v. Latner, 2020 ONCA 554, at para. 92.

Analysis

[13] Here, the husband was the more successful party, particularly in the central issue of the stay of the temporary “support” orders. However he was not successful in regard to the less fully argued issue of the release of funds. He obtained the majority of the disclosure he sought without having to argue the issue. With regard to the three areas of disclosure that I was required to determine, while I ordered them, it is far from certain that the documents can be obtained at this time.

[14] The hourly amounts charged by the husband’s counsel are appropriate. However this is not a case for the full indemnity scale of costs he seeks, or even enhanced costs. Arguably the wife’s position regarding the main issue was unreasonable in that she was completely unsuccessful. But as stated above, success is not the sole measure of costs. While as stated above, success is relevant, it is not necessarily the sole measure of reasonable behaviour. The result sought by the husband left the wife with her income cut in half while solely supporting the parties’ child. It is at least understandable that she challenged such a result. That fact does not speak to the husband’s entitlement to costs but it is relevant to a consideration of the scale of costs. Further, the husband attempted to cram a long motion into a regular motion date, causing the added expense of a second date. At this time, I cannot speak to the necessity or proportionality of the disclosure order that I made.

[15] Further, comparing the two solicitors’ bills of costs raises issue of the quantum charged by the husband‘s lawyer and the wife’s reasonable expectations. The bill of costs of the successful party does not have to match that of the unsuccessful party, after all the winning party may have appropriately put in more work or worked more efficiently than the other party.

[16] Finally, I am entitled, under r. 24(12) (b) to consider the ability to pay of the losing party: C.A.M. v. D.M., 2003 18880 (ON CA), [2003] O.J. No. 3707, (Ont. C.A.), at para. 42, Peers v. Poupore, 2008 ONCJ 615, at para. 42. I may consider the effect that a costs award will have on the payor’s ability to be self-sufficient: Murray v. Murray, 2005 46626 (ON CA), [2005] O.J. No. 5379 (Ont. C.A.), at para. 10-11. I may also consider the effect on a primary parent’s ability to support the parties’ child if they are also asked to pay costs: C.A.M. v. D.M., at para. 42, Van Rassel v. Van Rassel, 2008 56939 (ON SC), [2008] O.J. No. 4410, 61 R.F.L. (6th) 364 (S.C.J.) at para. 9.

[17] That does not mean that a litigant of limited means is sheltered from all of the consequences of litigating. The ability to pay may be relevant to the issue of the quantum or scale of costs, but not to another party's entitlement to costs; nor should it shield a party who has acted unreasonably: Izyuk v. Bilousov, 2011 ONSC 7476, para. 51. As Spence J. wrote in Peers v. Poupore, at para. 42: “ability to pay alone cannot - nor should it - override the other factors in [what is now r. 24(12)].

[18] In considering all of the factors set out above, I find that the wife should pay costs of this motion, fixed at $11,500. That amount reflects an amount that is slightly higher than partial indemnity costs and greater than her own lawyer’s full indemnity costs. I find that that amount is fair, reasonable and proportionate in the circumstances. In light of her limited finances, I will not order the wife to pay that amount immediately. Rather it shall be paid in any event of the cause.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz

Date: August 12, 2021

Nour v. Youssef, 2021 ONSC 5539

Case Summary

Introduction

Relevant Costs Authorities

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legislation 1