Court File No.: FS-21-25773 (Toronto)

Date: 2022-08-11

Superior Court of Justice – Ontario

Re: Devon Kathleen Brady, Applicant

And:

Brendan Conor Fitzpatrick, Respondent

Before: The Honourable Mr. Justice R. A. Lococo

Counsel: Dani Frodis, for the Applicant Elliot Birnboim and Hailey E. Corrigan, for the Respondent

Heard: By written submissions dated July 29 to August 2, 2022

Endorsement – Costs

I. Introduction

[1] This endorsement addresses the costs consequences arising from the respondent Brendan FitzPatrick’s motion to require the applicant Devon Brady to pay interim child support pending final disposition of Devon’s family law application.

[2] The parties separated in March 2020, when Devon moved out of the matrimonial home. They have two young children. The parties had approximately equal parenting time until July 2021. On Brendan’s initiative, the children were in Brendan’s primary care from July 2021 to June 2022. Effective July 1, 2022, the parties again have approximately equal parenting time with the children, this time under court order.

[3] At the motion hearing, Brendan sought interim child support in the full amount specified in the Federal Child Support Guidelines, SOR/97-175, (“Guideline support”) for the period from July 2021 to June 2022. Brendan also sought child support calculated on an offset basis in the amount of $801 per month commencing July 1, 2022. Devon argued that the issue of child support should be left to be determined at trial, apart from support for May and June 2022, when Brendan’s primary parenting time was sanctioned by court order. Shortly before the motion hearing, Devon paid full Guideline support to Brendan for May and June 2022 only.

[4] As set out in Reasons for Decision dated July 11, 2022 (reported at 2022 ONSC 3977), I made a temporary order, granting Brendan’s motion in part. I ordered Devon to pay full Guideline support on an interim basis for the period from November (rather than July) 2021 to April 2022 and offset child support in the amount of $137 per month commencing July 1, 2022. Costs were left to be determined following written submissions.

[5] At the motion hearing, the parties’ counsel advised of their agreement that the successful party should be awarded costs in the range of $6,500, calculated on a partial indemnity basis. They also agreed that in determining costs, the court should consider any relevant offer to settle, to be provided following release of the motion decision: see motion reasons, at para. 47.

[6] Along with their costs submissions, each side has provided an offer to settle made prior to the motion hearing.

[7] Brendan’s offer proposed that Devon would pay Brendan the global amount of $15,000 “in satisfaction of all retroactive child support and ongoing child support to January 1, 2023.” Once Brendan’s counsel learned that Devon had paid a total of $2,796 for child support for May and June 2022, he advised that those amounts would be credited against the offered amount. Brendan’s offer to settle also proposed that any child support obligations owing from either party would be reviewable on or after January 1, 2023.

[8] Devon’s offer to settle proposed that each of the following matters would be reserved to trial:

a. Brendan’s claim for child support for the period July 2021 to April 2022;

b. Devon’s claim for a post-separation adjustment of $15,182.97 on account of funds Brendan withdrew from the parties’ joint line of credit after separation; and

c. The costs of Brendan’s interim child support motion.

[9] Brendan argues that he should be awarded $6,500 as partial indemnity costs of the motion, plus $1,500 for preparation of his costs submissions, for a total of $8,000. Brendan says that even though he was only partially successful on the motion (measured by reference to the relief sought), he should be treated as the successful party since the amount awarded exceeded the amount of his offer to settle. He also alleged unreasonable and bad faith conduct by Devon, including by failing to make reasonable efforts to settle outstanding issues (including the costs of the motion) as compared to what he describes as his own reasonable attempts to settle.

[10] Devon disputes that Brendan was the successful party, arguing that success was divided. She disputes that the amount awarded to Brendan exceeded the amount of his offer to settle, arguing that neither party made an offer to settle that was more favourable than the party’s position on the motion. She also submits that in determining the issue of costs, it is impermissible for Brendan to rely on the parties’ negotiations relating to that very issue. Devon’s position is that she should be awarded costs in the amount of $1,500, based on Brendan’s failure to provide court-ordered financial disclosure relevant to the calculation of his income for support purposes. In the alternative, she argues that each party should bear their own costs, based on their divided success.

II. Legal principles

[11] The determination of costs is in the court’s discretion: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131. Further direction relating to costs is provided by case law and the rules that govern the conduct of court proceedings.

[12] Modern costs rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants for the cost of litigation; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, citing Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22.

[13] In family law proceedings, there is a presumption that a successful party is entitled to costs: Family Law Rules, O. Reg. 114/99, r. 24(1). However, a successful party who has behaved unreasonably during a case may be deprived of all or part of their own costs or ordered to pay all or part of the unsuccessful party’s costs: rr. 24(4) and 24(5). If success is divided, the court may apportion costs as appropriate: r. 24(6).

[14] Consistent with r. 24(1), consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 2000 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. S.C.), at para. 1. To determine whether a party has been successful, it is appropriate for the court to consider (i) the position each party took on the matters being decided, and (ii) the terms of offers to settle the parties made: Lawson v. Lawson, 2008 23496 (Ont. S.C.), at para. 7; Sordi v Sordi, 2010 ONSC 6236, at para. 3.

[15] As a general rule, “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs” in family law proceedings: see Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12. That principle is reflected in r. 24(12)(a), which directs the court to consider the “reasonableness and proportionality” of a number of listed factors as they relate to “the importance and complexity of the issues”. Those factors include (i) each party’s behaviour, (ii) any written offers to settle, and (iii) legal fees and expenses.

[16] When fixing costs, r. 18(14) provides additional direction that applies where a party who makes a written offer to settle obtains an order that meets the conditions set out in that rule. Those conditions include the requirement that the offering party obtains a result that is “as favourable as or more favourable than the offer.” If the conditions are met, the offering party is “entitled to costs to the date the offer was served and full recovery of costs from that date”. When fixing costs, the court may take into account any written offer to settle, whether or not r. 18(14) applies: see r. 18(16).

III. Analysis and conclusion

[17] For the reasons below, I have concluded that Brendan should be awarded partial indemnity costs in the amount of $3,500.

[18] I consider Brendan to be the successful party on this motion. However, his success was less than complete, justifying a downward adjustment in the quantum of costs he would otherwise have received.

[19] At the motion hearing, Brendan sought interim child support for the period commencing July 2021. I awarded support for the period commencing November 2021, leaving child support for prior periods to be determined at trial. He sought ongoing child support on an offset basis based in part on his estimated 2022 income. I was not satisfied the evidence supported his estimate, with the result that I awarded a lower amount of offset child support based on his 2021 stated income, subject to adjustment at trial based on a more complete evidentiary record.

[20] Consideration of the parties’ offers to settle the motion does not change my assessment of Brendan’s degree of success on motion.

[21] I agree with Devon’s counsel that I should disregard the information Brendan provided about counsel’s negotiations after the motion hearing relating to the costs of the motion. I do not consider it appropriate to take into account any offer made in that context, since it relates to the very issue that is being decided in this endorsement: see L.L.M. v. T.Z, 2022 ONSC 624, at para. 8; Witt v. Witt, 2019 ONSC 3732, at paras. 13-14.

[22] In addition, while Brendan made a good faith attempt to settle the motion before the hearing, I am not satisfied that the amount he offered to accept was more favourable that the amount awarded. As I read his offer, he proposed accepting the global amount of $15,000 to settle all retroactive and ongoing child support to January 1, 2023. The child support I awarded related to specific periods of time and left open child support for prior periods going back to the date of separation. I made no determination as to child support (if any) that may have been payable for those periods or in which direction support would have flowed. Brendan also included in his calculation over $5,000 in s. 7 expenses that he says would have been payable to him by April 1, 2023. In the motion reasons, I made no findings relating to specific amounts of s. 7 expenses incurred or to be incurred: see motion reasons, at para. 45.

[23] In addition, I disagree with Brendan’s characterization of Devon’s conduct (including her offer to settle) as being so unreasonable as to warrant a costs sanction. While Devon’s offer was not more favourable that the motion result (as she conceded), the offer did include an element of proposed compromise. Subject to adjustment at trial, the offer would have allowed Brendon to retain funds he withdrew from the parties’ joint account after trial. In all the circumstances, I do not consider Devon to have acted in bad faith, as Brendan alleged.

[24] At the same time, I disagree with Devon’s position that there should be a costs sanction relating to Brendan’s failure to provided court-ordered financial disclosure to Devon. In the motion reasons, at para. 41, I noted that certain required disclosure remained outstanding, but I also stated that Brendan had already made a significant level of disclosure and rejected Devon’s submission that Brendan was withholding financial disclosure for colourable purposes. In these circumstances, I do not consider it appropriate to impose a costs sanction on Brendan in the context of this motion.

IV. Disposition

[25] Accordingly, given Brendan’s partial degree of success on his motion and the other considerations referred to above, Brendan’s costs of the motion are fixed at $3,500, payable by Devon within 30 days.

R. A. Lococo J.

Released: August 11, 2022