Court File and Parties

COURT FILE NO.: FC-20-1395 DATE: 2022/05/31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Micheline Luisa Barta, Applicant AND Robert David Barta, Respondent

BEFORE: Justice Engelking

COUNSEL: Bryan Delaney, for the Applicant Philip W. Augustine, for the Respondent

HEARD: In Writing

Amended Endorsement on Costs

The text of the Endorsement on Costs was amended on May 31, 2022 and the description of the amendment is appended.

Engelking J.

[1] A motion was heard on June 24, 2021, in this matter. My endorsement was released on September 21, 2021. The parties were invited to make written submissions on the issue of costs if they could not resolve it on consent. They have done so, and this is my endorsement on that issue.

[2] The Respondent, who was the more successful party on the motion seeks an order of costs of $19,000.00, which amounts to essentially on a substantial basis.

[3] The Applicant seeks an order that the parties bear their own costs for the motion. Her position is that she obtained certain relief, albeit on consent, only after she brought her motion, notwithstanding that she had been requesting it since the case conference in December of 2020.

[4] The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants.” [1]

[5] Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award. [2] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses. [3] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met. [4]

[6] The Respondent’s total costs for the motion on a full recovery basis were $19,480.50 plus HST of $2,532.47 for a total of $22,012.97. The Applicant’s total costs for the motion on a full recovery basis were $27,482.50 plus HST of $3,572.73.

[7] There were several issues before the court. Those which resolved on consent were included in the Respondent’s Offer to Settle dated May 4, 2021. For those which were not resolved, the outcome of the motion was as or more favourable to the Respondent than his offer.

[8] One premise upon which costs considerations are based is that a party should be ordered to pay costs in an amount equivalent, or nearly so, to that which they would have expected to pay if successful. In this case, that sum is close. Though it is slightly higher for the Applicant, that may be expected as the moving party.

[9] While the Respondent was, in my view, the successful party on the motion, it did result, even if by consent, in a number of requests for relief being granted. However, on the substantive issues, being whether the eldest child remains “a child of the marriage” and interim and retroactive spousal and child support, the Applicant was not successful.

[10] Moreover, in his May 4, 2021, Offer to Settle, the Respondent offered to slightly increase child support for two children, spousal support and to pay some retroactive child and spousal support, which the court did not order. The Applicant made two formal Offers to Settle, both of which were more favorable to her than the outcome of the motion. In both, the Applicant based child support on her income of $6,873 and payable for three children, neither of which were granted on the motion. In all the circumstances, the Applicant shall be required to pay costs to the Respondent.

[11] For the reasons given above, there shall be an order as follows:

1. The Applicant shall pay to the Respondent costs for the motion of $17,000 inclusive of HST and disbursements.

Engelking J. Date: May 31, 2022

Appendix

Amendment made May 31, 2022:

• In paragraph [10] on page 3, the sentence: Additionally, the Applicant appears to have made no Offer to Settle herself. All parties have an obligation to attempt to resolve issues prior to litigation, has been replaced with the sentence: The Applicant made two formal Offers to Settle, both of which were more favorable to her than the outcome of the motion. In both, the Applicant based child support on her income of $6,873 and payable for three children, neither of which were granted on the motion.

COURT FILE NO.: FC-20-1395 DATE: 2022/05/31 ONTARIO SUPERIOR COURT OF JUSTICE RE: Micheline Luisa Barta, Applicant AND Robert David Barta, Respondent BEFORE: Justice Engelking COUNSEL: Bryan Delaney, for the Applicant Philip W. Augustine, for the Respondent Amended ENDORSEMENT on costs Engelking J.

Released: May 31, 2022

[1] Mattina v. Mattina, 2018 ONCA 867, paragraph 10

[2] Rule 24(12), Family Law Rules, O.Reg. 114/99, as am.

[3] Ibid.

[4] A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.