COURT FILE NO.: FC-12-1249-4
DATE: 2022/09/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Douglas Swinton, Applicant
-and-
Audra Lea Minifie, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant, Self-Represented
Elise Hallewick, for the Respondent (Julie Gravelle appearing as agent)
HEARD: In writing
Costs ENDORSEMENT
Overview
[1] This is my decision on costs following the final hearing of this Application on July 14, 2022, and my decision dated July 15, 2022.
[2] The Respondent provided her cost submissions as directed. The Applicant did not provide any submissions in response[^1].
[3] The Respondent seeks costs fixed at $5,000. Her position is that she was the successful party, the Applicant acted unreasonably in a manner that increased her costs, and she achieved a result that was as favourable or more favourable than her offer served on April 19, 2022.
[4] For the reasons set out below, I am ordering the Applicant to pay the Respondent her costs of this Application fixed at $5,000.
Factors in Determining Costs
[5] Modern costs rules are designed to foster four fundamental purposes; (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules)[^2].
[6] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.
[7] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs[^3]. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party[^4].
[8] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
(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.
[9] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g., where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).
[10] Rule 18(14) provides that a party is, unless the court orders otherwise, entitled to costs on a full recovery basis from the date an offer was served, 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).
[11] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:
• Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[12] Rule 24(5) provides guidance on how to evaluate reasonableness:
• In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[13] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:
• 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.
Successful Party
[14] The Respondent was the successful party in this Application. The Respondent achieved the relief that she sought at the final hearing, being confirmation that she did not owe further amounts for child support and dismissing all other requests for relief.
The Respondent’s Offer
[15] I do not find that the Respondent obtained a result that was as favourable or more favourable that her offer served on April 19, 2022. This is because the Respondent’s offer included a clause that the children “shall be deemed independent now and forever”. This clause was not part of the final order made, nor is it a clause that the court would have jurisdiction to order. The wording of this clause is more in the way of a final release on child support, which is beyond the court’s jurisdiction. For this reason, the offer does not entitle the Respondent to full recovery of her costs from the date of the offer.
[16] However, the Respondent’s offer is still a factor to be considered under Rule 24. Her offer, which was basically to dismiss the Application without costs, was reasonable. In all respects except for the release-like clause referred to above, the Applicant would have been better off if he had accepted her reasonable offer, primarily because she was offering to forgo costs. Particularly in light of the Respondent’s failure to provide disclosure and timely material, I find that the Respondent’s offer is a factor that weighs in favour of a higher award of costs against the Applicant.
The Applicant’s Conduct
[17] I am not finding that the Applicant’s conduct constituted bad faith under Rule 24(8). The Respondent did not seek this finding, which was reasonable on her part.
[18] However, the Applicant’s conduct in this Application was unreasonable in many respects, warranting a higher award of costs. The deficiencies in the Applicant’s conduct are referred to in my decision dated July 15, 2022. They include his failure to comply with the Rules, serving material late, serving material that was deficient, conduct that resulted in repeated adjournments, and failure to provide undertakings.
The Respondent’s Conduct
[19] I find that the Respondent acted reasonably, such that she is not disentitled to an award of costs nor does her conduct warrant reducing the award of costs.
The Respondent’s Legal Fees
[20] The Respondent’s bill of costs is for the period from July 12, 2021, to July 14, 2022, for 21.80 hours of her counsel’s time, for a total of $6,540, plus HST of $850.20.
[21] The Respondent’s counsel’s hourly rate is $300. She was called to the bar in 2005.
[22] This Application was commenced by the Applicant on December 5, 2018. The Respondent is not seeking costs for the period prior to July 12, 2021.
[23] I find that the Respondent’s fees are reasonable and proportional given the issues in dispute.
Reasonable and Proportional
[24] Taking the factors under Rule 24 into consideration, with emphasis on the factors referred to above, I award the Respondent the costs she seeks, being costs fixed at $5,000. I find that an award of costs fixed at $5,000 is reasonable and proportional, and just, and furthers the purposes a cost award is intended to accomplish.
Disposition
[25] For the reasons set out above, I make the following Order under the Family Law Rules:
The Applicant, Douglas Swinton, shall pay the Respondent, Audra Lea Minifie, her costs of this Application fixed at $5,000, payable forthwith.
This cost award shall bear interest at the prescribed rate pursuant to the Courts of Justice Act.
Justice P. MacEachern
Date: September 7, 2022
COURT FILE NO.: FC-12-1249-4
DATE: 2022/09/07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Douglas Swinton, Applicant
-and-
Audra Lea Minifie, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant, Self- Represented
Elise Hallewick, for the Respondent (Julie Gravelle appearing as agent)
costs ENDORSEMENT
Justice P. MacEachern
Released: September 7, 2022
[^1]: My assistant sent an email to the parties to confirm if the Respondent had filed cost submissions in case they had been misdirected. The Respondent’s counsel confirmed she had not been served with any cost submissions by the Respondent. The Respondent did not respond to the inquiry.
[^2]: Family Law Rules, Rule 2(2); Mattina v. Mattina, 2018 ONCA 867
[^3]: M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, at para. 40
[^4]: Berta v. Berta, 2015 ONCA 918 at para. 94