Superior Court of Justice - Ontario

COURT FILE NO.: FS-21-00025601-0000

DATE: 2021-11-05

RE: E.L., Applicant

AND:

M.K., Respondent

BEFORE: Madam Justice Papageorgiou

COUNSEL: Christina Doris and Afsana Allidina, for the Applicant

M.K., Self-Represented Respondent

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] On September 21, 2021 I granted an urgent motion granting the Applicant E.L. (the “Mother”) with interim decision-making authority for E.R.K. (the “Child”) and that she be permitted to register the Child in a school of her choice.

[2] The Mother seeks her full indemnity costs in the amount of $13,172.97.

[3] Modern costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlement, to discourage and sanction inappropriate behaviour, and to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules (the “Rules”): Matina v. Matina, 2018 ONCA 867 at para 10, Probst v. Shah, 2020 ONSC 2290, at para 2; Serra v. Serra 2009 ONCA 3959.

[4] A costs award should always reflect what is a fair and reasonable amount to be paid to the successful party: Oduwole v. Mosses 2016 ONCJ 653.

[5] “Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.”: Beaver v Hill, 2018 ONCA 840 at para 12; Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), 2004 CarswellOnt 2521 (OCA) at paras 24, 26 and 37-38. Although the Family Law Rules do provide for an entitlement to full recovery costs in specific circumstances, including bad faith: r. 24(8), “there is no provision in the Family Law Rules that provides for a general approach of ‘close to full recovery’ costs: Beaver. Neither is there a presumptive entitlement to substantial indemnity costs; as the Ontario Court of Appeal commented in Serra v. Serra, 2009 ONCA 395 at para 8, family costs rules are designed to “partially indemnify successful litigants for the cost of litigation.” The Court of Appeal also confirmed in M.(C.A.) v. M.(D.) 2003 18880 (ON CA), 2003 CarswellOnt 3606 (OCA) at para 43 and Berta v. Berta, 2015 CarswellOnt 19550 (OCA) at para 94 that the overriding consideration in family law cases is “reasonableness of the costs sought” and actual costs are not determinative.

[6] Further, because the Rules do not mention any scale of costs, judges are not confined to awarding costs on either a partial indemnity or substantial indemnity basis.

[7] Pursuant to r. 24(12), the Court must also consider the reasonableness and the proportionality of a number of factors as they relate to the importance and complexity of the issues, including each party’s behaviour, the time spent by each party, any written offers to settle, any legal fees, including the number of lawyers and their rates, any expert witness fees, any expenses paid or payable and any other matter: r. 24(1) and r. 24(12), Belair v. Bourgan, 2019 ONSC 2170 at para 37.

[8] I agree that the Mother is entitled to costs for the following reasons:

a. The Mother achieved complete success in obtaining all relief sought.

b. The Respondent, M.R.K. (the “Father”) has acted unreasonably throughout this proceeding: i) He improperly prevented the Child from being registered in school such that he missed the first two weeks The Mother had no choice but to bring the motion; ii) he did not serve his responding material on the Mother until five minutes before the start of the motion.

c. The Mother asserts that after the motion, the Father emailed a copy of the Mother’s affidavit to the Child which contained harmful information about the Child’s parents’ history. Her submission indicates that the Father advised the Child the Mother was manipulating him and that he was unsuccessful in the motion because “females that seem to run the family court system in Toronto.” She says that this caused the Child to become withdrawn and that post-motion conduct may be taken into account when determining costs: Parsons v. Parsons, 2002 45521 (ON SC), [2002] O.J. No. 3034 at para 14; Carbone v. Bullock, 2020 ONSC 2788 at para 25, citing Miller v. Volk, 2010 ONSC 99 at paras 22-23.

d. While there is no evidence before me on this issue, the Father does concede in his costs submissions that he “did communicate with [the Child] expressing concerns about statements that [the Child] had made about [the Father] and wanted confirmation that those statements were correct.” This confirms that the Father did communicate with the Child after the motion, about the motion, thus improperly involving him in this conflict.

e. The Mother made an Offer to Settle pursuant to Rule 18(4) of the rules whereby she would settle the motion only on the basis that the Child be permitted to enroll in a school of the Mother’s choice. I granted the Mother interim decision-making over all issues.

f. The matters in dispute were of great importance for the Child who had been suffering academically.

g. I have reviewed the time spent by counsel, as well as their rates. Their rates are satisfactory. However, in my view, the amount sought is not proportionate to the volume of materials and complexity of the matter and would not have been within the reasonable contemplation of the Respondent.

[9] I am fixing costs at $7,000 to be paid within 14 days of these reasons.

Papageorgiou J.

Date: November 5, 2021