Court File and Parties

Court File No.: 05-1071 Date: 2022-03-03 Superior Court of Justice - Ontario

Re: Rick Minish, Applicant And: Tracey Timmons (Lutz), Respondent

Before: Justice L. Lacelle

Counsel: Douglas Grenkie, Counsel for the Applicant Penelope Gardner, Counsel for the Respondent

Heard: By written submissions dated December 8th, 2021 and January 5th, 2022

Costs Endorsement

[1] On November 17, 2021, I ruled in favour of the Respondent on the motion brought by the Applicant (2021 ONSC 7622) regarding post-secondary expenses for the parties' daughter. This is my ruling on the costs to be awarded following the motion.

The positions of the parties

The Respondent

[2] The Respondent seeks a costs order in the amount of $9,124.75, which represents full indemnity for her costs, including HST.

[3] The Respondent outlines the background to this motion and draws the court's attention to the terms of Rule 24 of the Family Law Rules and recent case law as to the awarding of costs. She argues that she was overwhelmingly successful in this motion. She submits the time devoted to the file was reasonable given the size of the file, the increasing number of issues, and the time required to review documents and prepare. She submits that the Applicant should have acknowledged her significant contribution towards their daughter Kaitlyn's first year of study, and the Respondent's current financial situation. She suggests he might have otherwise resolved the matter given the sizeable RESP he held for Kaitlyn. She acknowledges neither party made an offer to settle.

The Applicant

[4] The Applicant argues that had the motion not been heard, the Respondent would not have made any contribution towards Kaitlyn's post-secondary expenses. He emphasizes the principles of reasonableness and proportionality in determining costs awards. The principle of proportionality ensures that costs orders do not allow counsel to recover for spending inordinate amounts of time on a case. As a rule of thumb, proportionality may be assessed by noting what a losing party should have anticipated concerning responsibility for costs. Consequently, even given the presumption that costs will be awarded to the successful party, it is a rebuttable presumption and the court may exercise its discretion based on these factors: the financial means of the successful party; the reasonableness of the successful party's bill of costs; and the behaviour of the successful party. In support of this position, he cites M.(A.C.) v. M.D., 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.).

[5] In this instance, the Applicant says that the Respondent's bill of costs is inflated and unreasonable given the complexity of the matter. He emphasizes his own limited means and his sole support for Kaitlyn since August 2020. He says the motion was necessary for the benefit of their daughter and argues that these are appropriate circumstances to order that each party be responsible for their own costs. Alternatively, he submits that any costs awarded to the Respondent should be minimal. He attaches his own bill of costs in the amount of $7,008.62.

The governing principles

[6] Rule 24 of the Family Law Rules governs the court's approach to awarding costs.

[7] Subrule 24(1) addresses entitlement to costs and sets out the presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[8] Subrule 24(12) provides that 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.

[9] Subrule 24(5) provides further direction as to how a court may determine whether a party's behaviour has been unreasonable. It directs the court to examine the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.

[10] Further guidance as to the factors applicable to the exercise of the court's discretion in awarding costs is found in the jurisprudence. In Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.), the Court of Appeal for Ontario confirmed at para. 8 that "modern costs rules are designed to foster 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".

[11] These principles were more recently affirmed in Mattina v. Mattina, 2018 ONCA 867 at para. 10, which also confirms that

Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly: Family Law Rules, r. 2(2); E.H. v. O.K., 2018 ONCJ 578 (Ont. C.J.), at para. 8; Sambasivam v. Pulendrarajah, 2012 ONCJ 711 (Ont. C.J.), at para. 37. And Rule 24(12)^1, which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award.

[12] Ultimately, the amount of any costs award is within the court's discretion having regard to these Rules and principles.

Analysis and Decision

[13] First, I find that the Respondent is entitled to a costs award. She was the successful party on the motion. However, there is some merit to the Applicant's position that the Respondent's success was qualified, since she had not been making any contributions towards Kaitlyn's post-secondary expenses until he brought the motion and she has now been ordered to pay sums directly to Kaitlyn.

[14] A costs award serves the purpose of reinforcing that the parties must behave reasonably and try to resolve issues through negotiation. The risk of failing to negotiate is in evidence in this case. To the extent that each party suggests the other was unwilling to negotiate, it is also noteworthy that neither made an offer to settle. The costs of this litigation were likely increased by the failure to even consider a proposal from the other side. Given the Respondent's failure to make an offer to settle, I do not see this as a case for costs awarded at the full indemnity rate.

[15] Neither party has expressly pleaded that the other was unreasonable. However, the Respondent emphasizes that the court noted deficiencies in the Applicant's financial statement. Given those deficiencies, even if they do not lead to a finding that the Applicant behaved unreasonably during his conduct in the litigation, it is difficult to assess his claim that he does not have the ability to pay any of the Respondent's costs in this litigation. Negotiating a settlement is also made more difficult when one party has not provided complete information to the other.

[16] There is some merit to the suggestion that a bill of costs of over $9,000 is not proportionate to the issues. I agree with the Applicant's critique of the Respondent's bill of costs.

[17] In the end result, I find that the Respondent is entitled to a costs award. However, that award will reflect the circumstances I have discussed above, the factors outlined in Rule 24, and the purpose of modern costs awards. I find it is fair, reasonable and proportionate that the Applicant pay costs of $4,500 (inclusive of HST) to the Respondent.

The Honourable Justice Laurie Lacelle

Date: March 3, 2022