Court File and Parties
Court File No.: F1247/21 Date: April 6, 2022 Superior Court of Justice – Ontario Family Court
Re: M.P.D.S., applicant And: J.M.S., respondent
Before: TOBIN J.
Counsel: Hilary Jenkins for the applicant William J. Doran for the respondent
Heard: written submissions filed
Endorsement on Costs
[1] The applicant (“mother”) and the respondent (“father”) brought motions for parenting orders including whether their five-year-old child should receive a Covid-19 vaccination. As well, both asked for decision-making responsibility for the children and exclusive possession of the matrimonial home.
[2] The motion was argued on February 16, 2022, and written reasons were released on March 1, 2022.
[3] The mother was granted primary care of the children and decision-making responsibility in relation to the children receiving a Covid-19 vaccination. The mother was allowed to move with the children from the matrimonial home. The father was granted specified parenting time with the children, subject to compliance with Covid-19 safety protocols.
[4] The mother asks for costs of $5,000. The father asks for an order that both parties bear their own costs.
Legal Considerations
[5] Modern family law cost rules are based on broad objectives. These objectives are to partially indemnify successful litigants; to encourage settlement; to discourage improper behaviour by litigants; and to ensure cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[6] Cost awards are discretionary. In the exercise of discretion, the court must consider two important principles: proportionality and “the ‘reasonableness’ evaluation of the ultimate award”: Beaver v. Hill, 2018 ONCA 840, at para. 4.
[7] Rule 24 of the Family Law Rules, O. Reg. 114/99 sets out the framework for awarding costs in family law cases decided in this court.
[8] An award of costs is subject to the factors listed in r. 24(12), r. 24(4), pertaining to unreasonable conduct of a successful party, r. 24(8), pertaining to bad faith, r. 18(14), pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, at para. 94.
[9] Rule 24(1) creates a presumption of costs in favour of a successful party.
[10] Rule 24(6) provides that if success in a step is divided, the court may apportion costs as appropriate. Divided success does not mean equal success. The court may look at the issues to determine if one party enjoyed greater success. In doing so, the court will look at the primary or the more important issues to determine if one party was more successful than the other.
[11] Rule 24(12) sets out factors that are relevant to setting the amount of costs. This subrule is formulated as follows:
24(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.
[12] In Beaver, at para. 12, the court stated with respect to r. 24(12) that:
- … proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.
[13] To trigger full recovery costs, a party must do as well or better than all the terms of any offer (or a severable section of an offer): Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ); Rebiere v. Rebiere, 2015 ONSC 2129 (SCJ); and Scipione v. Scipione, 2015 ONSC 5982 (SCJ). The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order: Wilson v. Kovalev, 2016 ONSC 163 (SCJ).
[14] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Scipione v. Del Sordo, 2015 ONSC 5982, at para. 23.
Discussion
[15] The mother argues that she is entitled to costs because she “carried the majority of success” on the motion and acted reasonably. She served an offer to settle that was similar to the court order granted, in relation to decision-making responsibility, the father’s parenting time and allowing her to move with the children from the matrimonial home. The father did not serve an offer to settle the motions. However, his costs submissions indicate that he provided documents to the mother’s counsel on a without prejudice basis before the court proceeding started. He did not provide these documents with his costs submissions.
[16] The father argues that costs should not be awarded on the motions until after his motion for leave to appeal to the Divisional Court and, if successful, the appeal from this court’s order is determined. No authority for this proposition was provided.
[17] The appeal brought by the father engages Family Law Rules, O. Reg. 114/99 r. 38(1). It provides that:
38(1) Rules 61, 62 and 63 of the Rules of Civil Procedure apply with necessary changes, including those modifications set out in subrules (2) and (3),
(a) if an appeal lies to the Divisional Court or the Court of Appeal;
b) if leave to appeal to the Divisional Court or the Court of Appeal is required,
in a family law case as described in subrule 1 (2).
[18] Rules of Civil Procedures, R.R.O. 1990, Reg. 194 r. 63.03(2) provides that a stay – pending appeal – does not prevent the assessment of costs.
[19] This Rule supports the proposition that a court may make a costs order even though the order is being appealed from.
[20] In Tricontinental Investments Co. v. Guarantee Co. of North America (1989), 70 O.R. (2d) 461 (Ont. C.A.), at para. 14, a case dealing with security for costs, the court observed that costs made following a trial will typically be reversed at appeal if the judgment is reversed. This suggests that the court may address the issue of costs even if the judgment is appealed from.
[21] The father’s appeal from this court’s order is not a sufficient reason to delay making a decision on costs on the motions.
[22] The father also argues that:
The mother’s motion dealt with more issues than were addressed at the case conference.
The mother’s evidence contained “uncorroborated allegations” against the father that required time and expense to explain and defend.
The applicant’s offer to settle provided for a “status quo that is less than what most fathers… have.”
The mother was not successful in her request for sole decision-making responsibility – it was limited to decisions related to Covid-19 vaccinations.
The mother’s request for decision-making responsibility regarding other vaccinations was not successful.
A costs award will “fuel conflict” between the parties.
[23] There was divided success on the motions. However, when considering the issues argued and the order made, the mother was more successful than the father. The children are in her primary care, and she was granted decision-making responsibility with respect to the children receiving Covid-19 vaccinations. The mother was also more successful in having the father’s parenting time defined and subject to compliance with Covid-19 safety protocols. Neither party was granted exclusive possession of the matrimonial home; however, the mother was allowed to move from the matrimonial home with the children.
[24] The mother acted reasonably in serving an offer to settle. The father did not serve an offer to settle these motions.
[25] The motion dealt with the most pressing issues the parties had to deal with arising from their separation. The issues raised by the parties did not amount to unreasonable behaviour by either of them.
[26] The mother did not act unreasonably in making the allegations she did against the father and which he denied. These were facts that were in dispute. As well, these facts were concisely stated by the mother and succinctly denied by the father.
[27] The mother’s offer to settle did not engage r. 18(14).
[28] The court does not ascribe unreasonable behaviour to the father with respect to the motions. The court accepts that he delivered without prejudice documents prior to the commencement of the court proceeding.
[29] On consideration of the foregoing, the court finds the applicant is entitled to costs of this motion.
[30] In determining the quantum of costs, the court takes into account that the issues addressed on the motions were very important to the parties and there was some complexity regarding the vaccination issue.
[31] Mother’s counsel’s bill of costs covers the period January 18, 2022 until March 2, 2022. It addresses the case conference as well as the preparation for and the arguing of the motions, and preparation of the draft order. This court is not going to award costs of the case conference in determining costs of the motions.
[32] The father did not object to the amount of time spent nor the hourly rate charged by mother’s counsel and law clerks.
[33] The father did not provide documentation showing his own fees and expenses in relation to the motions: see r. 24(12.2).
[34] Based on these considerations, the court finds that a fair, reasonable, and proportionate amount of costs to be paid by the father to the mother on account of the two motions is $3,000 inclusive of disbursements and applicable taxes.
“Justice Tobin” Justice B. Tobin Date: April 6, 2022