COSTS ENDORSEMENT
COURT FILE NO.: FC-18-583
DATE: 2022/05/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michelle Pagnan, Applicant
AND
Richard Gutierrez Gutierrez, Respondent
BEFORE: Blishen J.
COUNSEL: Elisabeth Amy Sheppard, for the Applicant
Respondent, Self-Represented
HEARD: In Writing
Introduction
[1] The Applicant(A) filed a motion to strike the Respondent’s (R) Answer or in the alternative a motion for summary judgement seeking final orders for: sole decision making, supervised parenting time for the R, child support and s. 7 expenses based on imputation of income to the R, child support arrears, medical and dental coverage, ongoing financial disclosure, life insurance to secure child support, permission to obtain travel documents without the R’s consent, a restraining order, and costs.
[2] The A proceeded with the motion for summary judgment.
[3] The R was served with the Notice of Motion and Affidavit evidence. He was provided with the Zoom link for the motion. He did not appear and filed no responding documents.
[4] Although late, the R was given leave to file an Answer at the Case Conference on April 17, 2019. He consented to the A having sole decision making and to paying child support as per the Child Support Guidelines, O.Reg. 391/97 as am (CSG) but requested unsupervised parenting time and contested the application for travel, life insurance, a restraining order, and costs.
[5] After reviewing the pleadings, the affidavit evidence of the A and her factum, all of which were served on the R, I granted most of the orders sought on the motion for summary judgement.
[6] The A argues she was successful on the motion and the R acted in bad faith. She therefore requests costs in the amount of $13,266.60 on a full recovery basis.
General Principles
[7] Modern costs rules are designed to foster four fundamental purposes:
to partially indemnify successful litigants,
to encourage settlement,
to discourage and sanction inappropriate behaviour by litigants, and
to ensure that cases are dealt with justly pursuant to r. 2 (2) of the Family Law Rules O.Reg. 114/99 as am. (FLRs). See Mattina v. Mattina, 2018 ONCA 867.
[8] Pursuant to r. 24 (1) of the FLRs, there is a presumption that a successful party is entitled to costs. Consideration of success is the starting point in determining costs. See Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.-Family Court).
[9] Offers to settle are important and can be the yard stick by which to measure success. They are significant in determining both liability for costs and quantum. See Osmar v. Osmar (2000), 2000 20380 (ON SC), 8R.F.L. (5th) 387, at para. 7 (Ont. S.C.) and Lawson v. Lawson, 2008 23496 (ON SC), 2008 CarswellOnt 2819, at para. 7 (Ont. S.C.).
[10] Although consideration of success is the starting point in determining costs, the successful party is not always entitled to costs. As noted by the Ontario Court of Appeal in Mattina v. Mattina:
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.
Success
[11] As noted, the A was the successful party on the summary judgement motion and is entitled to costs. She did not behave unreasonably.
[12] Child support was ordered based on income imputed to the R, slightly lower than that argued by the A and there was no order for medical dental benefits as requested by the A as there was no evidence as to the R’s current employment nor that he had ever worked for an employer providing such benefits.
Offers to Settle
[13] Subrule 18 (14) of the FLRs states:
Costs Consequences of Failure to Accept Offer
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
[14] The A served a comprehensive Offer to Settle dated March 24, 2022, on the R. That Offer remained open until the commencement of the motion. There was no response from the R and no written Offer from him meeting the requirements of Rule 18 or otherwise.
[15] The A’s Offer was more favourable to the R than the court order on the issue of parenting time and was the same on child support and most other issues. It was more detailed than the court order on the issue of s. 7 expenses. The Offer did propose medical/dental benefits which were not ordered for the reasons noted above.
Bad Faith:
[16] Section 24 (8) of the FLRs states:
Bad faith
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).
[17] The A argues the R acted in bad faith and therefore she should be entitled to full recovery costs.
[18] Bad faith requires proof of intent to harm, to conceal relevant information or to deceive. See: S. (C.) v S. (M.) , [2007 ]O.J. No. 2164 (Ont. S.C.J.), aff’d 2010 ONCA 196, [2010] O.J. No. 1064 (Ont. C.A.). See also Buchanan v. Buchanan, 2009 6831 (ON SC), [2009] O.J. No. 674 (Ont. S.C.J.)
[19] I am unable to find the requisite intent in this case, but I do find unreasonable behaviour by the R throughout.
Quantum of Costs:
[20] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See Beaver v. Hill, 2018 ONCA 840.
[21] Sub rule 24 (12) of the FLRs sets out the relevant factors in determining the quantum of costs:
SETTING COSTS AMOUNTS
(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 t heir 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. O. Reg. 298/18, s. 14.
[22] In addition to the factors listed under r. 24 (12) an award of costs is also subject to 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. See: Berta v. Berta, 2015 ONCA 918 (, at para. 94).
[23] The issues on the motion, although not complex were of significant importance to the A.
[24] The A spent four years attempting through the court and otherwise, to resolve issues which significantly impact her and affect seven-year-old Mia’s best interests. Any possible resolution was made more difficult by the R’s evasion of service, disregard for court ordered disclosure, failure to collaborate and communicate, failure to provide any written offer to settle and failure to provide any materials for the motion for summary judgment which the A was forced to bring. This behaviour resulted in previous orders for costs against the R which have not been paid. He has behaved unreasonably from the commencement of court proceedings in April 2018 until the motion was argued in April 2022.
[25] There were two previous orders of costs against the R - $300 in 2018 for evading service and October 30, 2019, at the Settlement Conference. At the Case Conference on April 17, 2019, costs were fixed in the amount of $500. The R has not paid the costs ordered against him and will also be ordered to pay the $500 costs assessed at the Case Conference, a total of $1300.
[26] Since the Settlement Conference, counsel for the A has spent 47.2 hours over 2 ½ years attempting to resolve all issues and finally in preparing for and arguing the motion. Although this is a significant amount of time, given the challenges of this case largely caused by the R’s unreasonable behaviour, I find it reasonable and proportionate.
[27] Counsel’s rate was reasonable given her years of experience.
Conclusion
[28] Assessing costs is “not simply a mechanical exercise”. See: Delellis v. Delellis and Delellis, 2005 36447 (ON SC), [2005] O.J. No. 4345. In that case, Justice Aston indicated as follows at para 9:
Costs must be proportional to the amount in issue and the outcome. 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.
[29] There must be flexibility in examining the factors in subrule 24 (12).
[30] Considering all the circumstances of this case including the A’s success on most issues, the importance of the issues to the child’s well being, the delay and challenges caused by the R’s unreasonable behaviour and failure to provide any offer to settle or materials for the summary
judgment motion and the reasonableness and proportionality of time spent by counsel on the issues, I find a fair and reasonable amount of costs to be $12,000 plus the outstanding costs of $1300 for a total costs award of $13,300 inclusive of disbursements and HST payable by the R within 90 days.
Blishen J.
Date: May 30, 2022
COURT FILE NO.: FC-18-583
DATE: 2022/05/30
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Michelle Pagnan, Applicant
AND
Richard Gutierrez Gutierrez, Respondent
BEFORE: Blishen J.
COUNSEL: Elisabeth Amy Sheppard, for the Applicant
Respondent, Self-Represented
ENDORSEMENT
Blishen J.
Released: May 30, 2022