Court File and Parties

COURT FILE NO.: FS-20-43623 DATE: 2022 03 24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R.L., Applicant AND: M.F., Respondent

BEFORE: Conlan J.

HEARD: In Writing

COUNSEL: Ms. M. McCarthy, for the Applicant, R.L. Ms. J. Nicoll, for the Respondent, M.F.

Endorsement on costs

[1] The Respondent mother, M.F., moved for an order, under subrule 4(7) of the Family Law Rules, appointing independent legal representation for the two children. The motion was opposed by the Applicant father, R.L. After a hearing on February 2, 2022, this Court dismissed the mother’s motion – R.L. v. M.F., 2022 ONSC 789.

[2] Unable to resolve the issue of costs, written submissions have been filed by each side. The father seeks his costs on a substantial indemnity basis in the total amount of $28,000.00. That figure is about 75% of the full recovery amount, $37,244.80. The mother suggests no order as to costs or, alternatively, that the father be awarded a sum in the range of $6000.00. The total fees and disbursements charged by the mother’s counsel for the motion amounts to $11,571.00.

[3] The basic legal principles on costs in family law proceedings are well known:

i. a successful party is presumed to be entitled to some costs, though the Family Law Rules outline one instance where that presumption may not apply, namely, where the successful party has behaved unreasonably; in our case I do not see any reason why that presumption should be displaced, despite this Court’s finding that the mother was well-intentioned in bringing the motion, and thus the father will be awarded some amount for costs;

ii. divided success may lead to an apportionment of costs, and fairly evenly divided success may lead to an order for no costs awarded to either side; in our case the father was wholly successful on the motion, and this cannot in my view be a proper case for no costs to be ordered;

iii. more frequently than not, the scale of costs will be partial indemnity, though a higher scale of costs may be appropriate depending on an offer to settle or bad faith, as the two most common examples; in our case it is common ground that no offer to settle is relevant here, and I do not consider the mother or her counsel to have acted inappropriately or in bad faith, and thus I believe that the appropriate scale of costs is partial indemnity;

iv. the deferral of costs is to be discouraged – they should generally be decided after each step in the proceeding; in our case there is no request to defer the issue of costs, and thus this Court does not have to wrestle with that issue;

v. the Rules contemplate that the issue of costs should be dealt with rather summarily, and we have adopted that approach here;

vi. there is no exhaustive list of what the judge may consider in her assessment, but there are several mandatory factors including but not limited to the importance of the issue(s) and the reasonableness of each party’s behaviour; in our case I do not view either side as having acted unreasonably, and I find that the issue was a very important one in that it affected the likelihood of the scheduled trial proceeding in October 2022; and

vii. at the end of the analysis, the judge should ask herself – is this a fair, just, reasonable, and proportionate result? Does the result respect the goals of costs awards – to partially indemnify successful litigants, to encourage settlement, and to discourage and sanction inappropriate behaviour?

[4] I agree with counsel for the mother that $28,000.00 for this motion, or even an amount in the range of $22,000.00, which would be at the low end of partial indemnity recovery based on the Bill of Costs filed on behalf of the father, would be too high. I do not in any way criticize the tremendous work of counsel for the father or the hourly rates or the time spent, but in my view no litigant in the shoes of this mother could reasonably expect to pay more than $20,000.00 for a one-issue motion.

[5] At the same time, I think that $6000.00 is too low. It is not reasonable to compare this motion to one for the interim sale of a home, for example, and while I accept counsel for the mother’s submission that the mother received $10,000.00 in costs from the father on account of his failed motion to force a sale of the home, I think that is akin to comparing apples to oranges. The motion that this Court decided more directly impacted the trial of the proceeding and whether that could reasonably be done this year. That was, and still is, a very significant concern to all involved, including the Court, and most importantly the children.

[6] Fixing the quantum of costs is more art than science. Having considered all of the circumstances, I have concluded that a fair, just, reasonable, and proportionate award would be $15,000.00, and I therefore order that M.F. shall pay to R.L., within thirty (30) calendar days after March 24, 2022, the total sum of $15,000.00 for the costs of this motion.

C.J. Conlan Electronic signature of Conlan J. Date: March 24, 2022