Court File and Parties

COURT FILE NO.: FC-21-126-0000 DATE: October 17, 2022 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jordon Hales, Applicant/Responding Party - and - Kristy Lightfoot, Respondent/Moving Party

BEFORE: MacNeil J.

COUNSEL: E. Brown – Lawyer for the Applicant/Responding Party S. Grewal – Lawyer for the Respondent/Moving Party

ADDITIONAL REASONS CONCERNING INTERIM MOTION COSTS

[1] In my decision on this interim motion, I gave the parties the opportunity to make costs submissions if they were unable to settle the issue of costs. They were not able to resolve the issue and written submissions were filed on behalf of both parties.

Position of the Applicant-Father

[2] The Applicant-Father requests costs on a partial indemnity scale in the amount of $3,000.00, inclusive of HST and disbursements. His request for costs is based on the following: (a) he was entirely successful on the motion and, therefore, is presumptively entitled to his costs; (b) the main issue was straightforward but highly contentious and had the potential to change a status quo and thus have an impact on the trial; (c) the Respondent-Mother does not argue that the costs claimed are unreasonable or excessive, only that she cannot pay; (d) the Respondent-Mother chose to proceed with the interim motion; (e) the costs amount sought by the Applicant-Father is comparable to the bill of costs submitted by the Respondent-Mother’s counsel; and (f) the Respondent-Mother could reasonably have expected to incur costs if she was unsuccessful on the motion.

Position of the Respondent-Mother

[3] The Respondent-Mother submits that no costs should be awarded to either party or, alternatively, the issue of costs should be reserved to the trial judge. She argues that, given the issues involved, the parties had agreed it would be a long motion and had set a timetable. The motion was adjourned on two occasions due to the OCL’s inability to provide written input. It was not within her control that the OCL’s report was not made available to the Court until after the motion was heard. It is the Respondent-Mother’s position that the conduct of the Applicant-Father was unreasonable and arguably vexatious as, among other things, he refused to cooperate when the issue of therapy for the child was first raised by the Respondent-Mother and his primary concern was to prevent her from building new connections in Vaughan rather than to obtain the needed therapy services. She further submits that the Applicant-Father failed to make an offer to settle and did not provide a parenting plan or solution to the school transportation issue. The Respondent-Mother contends that she is of limited financial means and the Applicant-Father’s underpayment of child support for over four years has “exacerbated” her financial circumstances. Finally, she submits that the materials and arguments relied on by the parties for the motion will be utilized at the trial so no legal fees were wasted.

Analysis

[4] Rule 24 of the Family Law Rules, O. Reg. 114/99 (“the FLR”), addresses the issue of costs. Rule 24(1) states that there is a presumption that a successful party is entitled to the costs of a motion.

[5] Rule 24(12) of the FLR outlines the factors to be considered in quantifying costs as follows:

(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.

[6] Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the costs of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: see Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22; Serra v. Serra, 2009 ONCA 395, at para. 8. The Ontario Court of Appeal has identified a fourth fundamental purpose, namely, to ensure that cases are dealt with justly: see Mattina v. Mattina, 2018 ONCA 867.

[7] The primary principles in fixing costs are fairness, reasonableness and proportionality. An award of costs should be proportional to what was at stake.

[8] The overall objective of fixing costs is to determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v Public Accountants Counsel for Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.).

[9] With respect to the Respondent-Mother’s submissions regarding economic hardship, the consideration of financial circumstances was discussed by Desormeau J. in Prevost v. Prevost, 2017 ONSC 6810 (Ont. S.C.J.), at paras. 21-23, as follows:

21 Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(11): Peers v. Poupore, 2008 ONCJ 615 (Ont. C.J.) (), para. 42; Lawrence v. Lawrence, at para. 35.

22 The (financial) means of the unsuccessful party may not be used to shield her from liability for costs, particularly when she has acted unreasonably: Gobin v. Gobin (2009), 2009 ONCJ 278, 71 R.F.L. (6th) 209 (Ont. C.J.), para. 24; Lawrence v. Lawrence, at para. 36.

23 Moreover, as stated by Justice Blishen: “ … although financial ability to pay is a factor in fixing costs, it cannot be a complete ‘defence’ to an award of costs. If it was, a party could litigate financial immunity. This result would be inconsistent with the policy of the Family Law Rules that litigants should be responsible for the positions they take in litigations”: Hackett v. Leung [2005 CarswellOnt 6686 (Ont. S.C.J.)], 2005 43354, at para. 15.

[10] While I have considered the Respondent-Mother’s submission that she is of limited financial means, I have given it little weight in the circumstances.

[11] I am satisfied that, as the successful party, the Applicant-Father is entitled to costs of the motion. I am not persuaded that his conduct in the litigation of the motion was unreasonable or vexatious.

[12] In determining the quantum of costs, I have taken into account the factors set out in Rule 24(12), including the importance of the issues to the parties, the reasonableness of each party's behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and the issue of proportionality or overall reasonableness of the claim for costs.

[13] I have considered that the Respondent-Mother could reasonably have expected to pay costs in the event of lack of success in the litigation, particularly as her motion materials set out her request for costs.

[14] After considering the costs submissions, the bill of costs and the relevant factors, I find that an award of $2,800.00 is fair, reasonable, and proportional in the circumstances.

[15] Accordingly, the Respondent-Mother shall pay to the Applicant-Father partial indemnity costs fixed at $2,800.00, inclusive of HST and disbursements. These costs are payable within 30 days.

B. MacNeil J.

MacNEIL J.

Released: October 17, 2022