Court File and Parties

COURT FILE NO.: FC215/02-02

DATE: 2022/11/10

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Samuel Pedro Goldman, Applicant

AND:

Mariana Weiss Goldman, Respondent

BEFORE: T. PRICE J.

COUNSEL: Anthony Macri - Counsel for the Applicant Carolyn J. Lloyd - Counsel for the Respondent

HEARD: In Chambers, based on written submissions the last of which were received on September 15, 2022

Costs ENDORSEMENT

Overview of the Proceeding for Which Costs Are Sought

[1] This was a Motion to Change in which the Applicant (hereinafter referred to as Dr. Goldman) requested an order terminating, effective November 1, 2019, a spousal support order made by Justice G. A. Campbell on April 11, 2003.

[2] Not only did the Respondent (hereinafter referred to as Ms. Weiss Goldman) oppose the relief sought, she claimed that, because the original support order was compensatory in nature, Dr. Goldman’s spousal support obligation should be increased substantially due to the increases in his income since 2003.

[3] As I noted in my endorsement, reported at 2022 ONSC 4585, the matter proceeded by way of a focused hearing which I concluded was, in effect, a trial. Almost all of the evidence was contained in the parties’ affidavits although I did require oral evidence on one issue.

[4] The parties also filed a Statement of Agreed Facts, which helped avoid a lot of evidence on background issues. Counsel also filed factums, which were of great assistance.

[5] The process, although reasonably streamlined, still required the degree of evidentiary analysis brought to a trial proceeding.

[6] Complicating matters was the fact that, although framed as a Motion to Change, the proceeding was, in fact, a review of spousal support, as was specifically provided for in the order of Justice Campbell.

[7] Counsel agreed that the review was to be approached as if it were an initial application for spousal support, with every issue that would typically be raised on such an application needing to be considered.

[8] Having done so, I concluded that it was premature to terminate Dr. Goldman’s spousal support obligation. I ordered him to continue paying spousal support in an amount less than had originally been ordered by Justice Campbell for a further period of 28 months, until December 31, 2024, at which point spousal support ends.

[9] I neither increased the support payments, as requested by Ms. Weiss Goldman, nor ordered that Ms. Weiss Goldman repay to Dr. Goldman the support payments received by her in the period between November 1, 2019 and September 1, 2022, as Dr. Goldman had requested. I am informed by counsel for Ms. Weiss Goldman that this meant a potential pre-tax saving to Ms. Weiss Goldman of over $131,500.00.

Positions of the Parties Regarding Costs

[10] Dr. Goldman’s position is that, having regard to his Offers to Settle, he was the successful party. He seeks costs in the amount of $30,000.00.

[11] Ms. Weiss Goldman’s position is that success was divided and that each party should bear their own costs. She asserts that, although she did not obtain an order increasing her spousal support, Dr. Goldman similarly did not obtain his requested order retroactively terminating spousal support and requiring repayment by Ms. Weiss Goldman of the support paid to her since the inception of this proceeding. Instead, his support obligation continues.

[12] In the alternative, Ms. Weiss Goldman requests that I decline to order costs against her because of her limited financial resources which, she asserts, pale in comparison to those of Dr. Goldman.

Order:

[13] For the reasons that follow, I order Ms. Weiss Goldman to pay costs to Dr. Goldman in the amount of $18,000.00, all inclusive.

Discussion and Analysis

[14] Family Law Rules 18 and 24 are most pertinent to a costs determination. Rule 18 relates to offers to settle. Rule 24 lists a number of factors that a judge must consider when determining costs.

[15] Rule 24(1) is the starting point in a costs analysis.[^1] It provides that there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. This focused hearing was either a motion or a case, so the presumption applies.

[16] The presumption in Rule 24(1) can, however, be rebutted if the successful party has behaved unreasonably during the case or if success is divided.[^2]

[17] Ms. Lloyd, counsel for Ms. Weiss Goldman, asserted that the presumption provided for by Rule 24(1) was rebutted because success was divided between the parties, both with respect to the outcome and the preliminary issues pertinent to it.

[18] In his submissions, Mr. Macri, counsel for Dr. Goldman, did not directly address the question of which party was successful, although he did assert that several of the Rule 24 factors favoured Dr. Goldman. He focused, particularly, on the parties’ written offers to settle in support of his assertion that Dr. Goldman is entitled to costs. He argued that they showed that Dr. Goldman’s offers, if accepted by Ms. Weiss Goldman, would have provided for a result more advantageous to her than the terms of my order.

Who, then, is the successful party?

[19] It is in attempting to answer this question that the relationship between Rule 24(1) and Rule 18(14) needs to be examined, with attention turning first to offers made under Rule 18 with a view to determining whether they meet the requirements of Rule 18(14), which provides for enhanced costs if its conditions are satisfied.

[20] Justice David Aston made this point in Osmar v. Osmar, 2000 20380 (ON SC), [2000] O.J. No. 2504, where he wrote, at paragraph 3:

3 According to Rule 24(1), a "successful" party is presumptively entitled to costs. Rule 18(14) provides an even more specific presumptive entitlement to costs. The starting point, therefore, is to consider any offers to settle meeting the formal requirements of Rule 18 and subrules (14) and (15).

[21] Justice A. Pazaratz expressed much the same view when he wrote at paragraphs 30-32 in Scipione v. Del Sordo:

OFFERS

30 To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made. Lawson v. Lawson 2008 23496 (ON SC), [2008] O.J. No. 1978 (SCJ).

The Parties’ Offers to Settle

Dr. Goldman

[22] Dr. Goldman made five offers to settle in the period between January 21, 2021 and November 24, 2021.

[23] Only one of those offers, dated July 9, 2021, met the formal requirements necessary for Rule 18(14) to be considered. It was made at least seven days before the hearing date. It did not expire, containing the explicit notation that it remained open for acceptance until five minutes after the commencement of the trial, unless withdrawn in writing in advance. It was signed electronically by both Dr. Goldman and his counsel, Mr. Macri, thereby satisfying the formal requirements set out in Rule 18(4). Ms. Weiss Goldman did not accept the offer.

[24] That offer provided for a lump sum payment by Dr. Goldman to Ms. Weiss Goldman in the amount of $50,000, with no further spousal support to be payable thereafter.

[25] In order for the costs consequences of Rule 18(14) to apply, Dr. Goldman had to obtain an order as favourable as or more favourable [to him] than this offer.

[26] Mr. Macri did not assert that he did. However, given that he has claimed that Dr. Goldman should obtain the benefit of his offers, I must first consider whether his client should receive the costs benefit of Rule 18(14).

[27] According to Mr. Macri’s submissions, based in part upon a calculation found at paragraph 466 of my endorsement, the net after-tax value to Ms. Weiss Goldman of each of the monthly support payments that I ordered Dr. Goldman to make amounted to $1,503.00. Over a period of 28 months, therefore, my order provided for Ms. Weiss Goldman to receive, after taxes, the net sum of $42,084.00 from Dr. Goldman.

[28] According to Mr. Macri, my order meant that Dr. Goldman “beat” his offer of July 9, 2021 because, had she accepted the offer, Ms. Weiss Goldman would have received, net of tax, $7,916.00 more than she will receive under the terms of my order.

[29] While that may be factually correct from the perspective of Ms. Weiss Goldman, Rule 18(14) requires that I focus on comparing the result with the offer made by Dr. Goldman and determine whether the result was more beneficial to him.

[30] Viewed from that perspective, I am unable to draw the conclusion that the effect of my order meant that Dr. Goldman obtained an outcome which was more advantageous to him than would have been the case if his offer had been accepted. To draw that conclusion requires that I know whether my order would result in Dr. Goldman being left, at the end of 28 months, with more or less than $50,000.00 after deducting from his income over the three tax years encompassed by the order, at his marginal tax rate, the total of the net values of the 28 individual monthly payments of $2,250.00.

[31] Having not been provided with the necessary information that would allow me to make that calculation, I cannot conclude that the order obtained by Dr. Goldman was as, or more, favourable to him than his offer dated July 9, 2021.

[32] Strict compliance with Rule 18(14) is necessary to trigger its costs consequences.[^3]

[33] As a result, I find that Dr. Goldman has not met the burden imposed on him by Rule 18(15) of proving that my order was as or more favourable to him than his offer to settle dated July 9, 2021. Accordingly, Dr. Goldman is not entitled to the “specific presumptive entitlement to costs” provided for by Rule 18(14).

[34] That noted, Rule 18(16) further provides that, when exercising my discretion over costs, I may take into account any offer to settle, the date it was made and its terms, even if Rule 18(14) does not apply. I intend to consider Dr. Goldman’s offers when examining the factors that I must consider under Rule 24.

Ms. Weiss Goldman

[35] Ms. Weiss Goldman does not assert that my order was more advantageous to her than any of her offers to settle, five of which she served over the period between January 14, 2021 and January 21, 2022, and four of which met the formal requirements of Rule 18(4).

[36] All of them would have had Dr. Goldman paying amounts, whether on a monthly basis, by way of a lump sum payment or some combination of the two, far in excess of that which I ordered him to pay.

[37] Accordingly, Ms. Weiss Goldman’s offers to settle will also be considered, as provided for by Rule 18(16), when I review the factors that I must consider under Rule 24.

Rule 24(6) - Was Success Divided?

[38] Rule 24(6) provides that a court may apportion costs as appropriate if success in a step in a case is divided.

[39] As I have noted, in his submissions, counsel for Dr. Goldman tacitly suggested that his client was the successful party. He did so through a submission that Ms. Weiss Goldman:

a. failed in respect of her claim for compensatory support,

b. had been found to be not attempting to become economically self-sufficient, and

c. had been found to be intentionally underemployed.

[40] He further noted that, in my endorsement, I had taken issue with some of Ms. Weiss Goldman’s deductions from her income, which went to establishing her income for spousal support purposes.

[41] In her submissions, Ms. Lloyd, counsel for Ms. Weiss Goldman, took issue with what, in her view, was a selective listing by Mr. Macri of the issues addressed in the proceeding.

[42] According to Ms. Lloyd, a larger number of issues were canvassed during the focused hearing. They included whether Ms. Weiss Goldman:

a. was entitled to compensatory support;

b. was entitled to non-compensatory support;

c. failed to disclose some of her income;

d. improperly deducted expenses from her income;

e. was intentionally under-employed following the parties’ separation; and

f. was entitled to share in Dr. Goldman’s post-separation increases in income.

[43] Neither counsel listed quantum or duration of support as a major issue. In my view, they were the other major issues, apart from entitlement, requiring the court’s determination. Success on those issues, however, did depend on the resolution of the subsidiary issues.

[44] Ms. Lloyd’s list of issues considered by the court, while partially overlapping Mr. Macri’s, is slightly more specific, so I intend to use it as the basis of my examination of success with respect to the subsidiary issues.

[45] Ms. Lloyd conceded that, according to her list, Dr. Goldman was successful in establishing that Ms. Weiss Goldman was not entitled to compensatory support and that she was not entitled to share in Dr. Goldman’s post-separation increases in income.

[46] Ms. Lloyd submitted that Ms. Weiss Goldman succeeded both in establishing her entitlement to non-compensatory support and in fending off the claim that she should have a higher income attributed to her because of non-disclosure.

[47] Ms. Lloyd further submitted that success was divided with respect to Dr. Goldman’s claim that Ms. Weiss Goldman had improperly deducted a number of expenses from her income to artificially reduce it, noting that the amount imputed back to her by me was less than the amount claimed by Dr. Goldman in his Motion to Change.

[48] Ms. Lloyd also submitted that success was divided on whether Ms. Weiss Goldman was intentionally underemployed following the separation. I disagree with Ms. Lloyd on this issue. I made the finding that Ms. Weiss Goldman was intentionally underemployed following the separation, but tempered it with the realistic view that, at her age, she would be unlikely to earn a great deal of money working elsewhere. Thus, while I found Ms. Weiss Goldman to be underemployed, I did not set lofty expectations nor impute to her much income to make up for that underemployment.

[49] Nevertheless, I accept the submission of Ms. Lloyd that, on the issues, there was a division of success. The question that arises from that, however, is whether that division of success is significant enough to have an impact on the costs to be awarded.

[50] Justice D. L. Chappel addressed the issue of divided success and the applicability of Rule 24(6) in Thompson v. Drummond, [2018] O.J. No. 4160, at para. 12, as did Justice A. Pazaratz in Scipione v. Del Sordo, 2015 ONSC 5982, supra.

[51] In Thompson v. Drummond, Justice Chappel wrote:

12 … The determination of whether success was truly "divided" does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)).

[52] In Scipione v. Del Sordo, Justice Pazaratz wrote:

68 "Divided success" does not necessarily mean "equal success". And "some success" may not be enough to impact on costs.

a. Rule 24(6) requires a contextual analysis.

b. Most family court cases involve multiple issues.

c. Not all issues are equally important, equally time-consuming or equally expensive to determine.

d. Comparative success can be assessed in relation to specific issues:

i. Did a mid-point number prevail on a financial issue?

ii. Did a compromise result on a parenting issue?

e. Comparative success can also be assessed globally in relation to the whole of the case:

i. How many issues were there?

ii. How did the issues compare in terms of importance, complexity and time expended?

iii. Was either party predominantly successful on more of the issues?

iv. Was either party more responsible for unnecessary legal costs being incurred?

[53] As I have noted, because this case was about whether Ms. Weiss Goldman continued to be entitled to spousal support and, if so, on what basis or bases, for how long and in what amount, those were the key issues.

[54] Issues such as whether she failed to disclose income, improperly deducted expenses, was intentionally underemployed, or was entitled to share in Dr. Goldman’s post-separation increases in income all went to the major issue of the quantum of support, if any, that should be paid to her.

[55] I find that, given the divided result, success was divided between the parties. However, because my order reduced the amount that Dr. Goldman is required to pay and set an end date for the payments, I also find that Dr. Goldman was the more successful party.

[56] Notwithstanding, Ms. Weiss Goldman, having been a successful party, primarily with respect to the key issue of establishing a basis for continuing support, but also in addition to some of the subsidiary issues, should have that success accounted for in some manner.

[57] Normally, I would propose to account for that in the manner suggested by Justice Chappel – by awarding costs to Dr. Goldman on a global basis, subject to an adjustment in favour of Ms. Weiss Goldman to account for her success on the issues I have noted, particularly her continuing entitlement to non-compensatory support.

[58] In this case, however, as will be seen, both parties factored Ms. Weiss Goldman’s continuing entitlement to spousal support into their offers to settle. That, in my view, weakens to some extent, but does not eliminate, Ms. Weiss Goldman’s right to have her success on the issue of an entitlement to continuing support accounted for by a reduction to the costs which would otherwise be awarded to Dr. Goldman.

Rule 24(4) - Unreasonable Behaviour by Successful Party

[59] Rule 24(4) provides that, despite the presumption set out in Rule 24(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.”

[60] The language suggests that the Rule only applies in the binary circumstance where there is a successful party and an unsuccessful party.

[61] Because that is not the case here, I will, instead, consider the behaviour of each party under Rule 24(12)(a)(i), below.

Rule 24(12) - Setting Costs Amounts

[62] Under Rule 24(12)(a), when setting the amount of costs, I am required to consider “the reasonableness and proportionality” of a number of factors as they “relate to the importance and complexity of the issues”.

[63] Neither party made submissions as to the importance and complexity of the issues before the court.

[64] In my view, the issue of continuing spousal support was important to both parties. Furthermore, because the case entailed a review and determination of entitlement to, and quantum of, spousal support as if in a situation of first instance, I also find that the issues were complex involving, as they did, a retrospective determination of the basis or bases of the original order for support.

Rule 24(12)(a)(i) - Each Party’s Behaviour

Rule 24(5) – Reasonableness

[65] Rule 24(5) sets out the parameters that I must examine in determining whether either party behaved unreasonably. Those parameters, consist of the following:

(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 made by the party; and

(c) any offer the party withdrew or failed to accept.

Dr. Goldman’s Behaviour – Mr. Macri’s Submissions

[66] In his submissions, Mr. Macri submitted that his client behaved reasonably throughout the proceeding. He highlighted efforts made by Dr. Goldman to minimize costs to the parties, including utilizing written questions and agreeing to participate in a focused hearing rather than having the matter proceed to trial.

[67] He further focused on his client’s offers to settle, noting that all five of Dr. Goldman’s offers were more advantageous to Ms. Weiss Goldman than my order.

[68] He submitted that Dr. Goldman was focused on settling the case, and contrasted the offers submitted by Ms. Weiss Goldman which, he suggested, only drove the litigation further along the path to a judicial determination rather than to settlement.

[69] Ms. Lloyd made no submission that Dr. Goldman behaved unreasonably. She was correct not to have done so. I find that, by making offers to settle, and by the steps that he took to facilitate the litigation, Dr. Goldman behaved reasonably.

Ms. Weiss Goldman’s Behaviour – Ms. Lloyd’s Submissions

[70] In her submissions, Ms. Lloyd pointed to Ms. Weiss Goldman also having made offers to settle, having agreed to participate in a focused hearing and having prepared the joint statement of agreed facts as evidence that she, too, behaved reasonably throughout.

[71] As I did in respect of these submissions by Dr. Goldman, I agree that, by making offers, and by participating as she did in steps to move the litigation forward in an expeditious and focused manner, Ms. Weiss Goldman also behaved reasonably.

[72] That, however, does not fully answer the question of whether either party behaved unreasonably. To assess that, I also must have regard to their offers to settle.

Analysis

[73] In reviewing the factors set out in Rule 24(5), I begin by observing that the issues in this case “arose” only when Dr. Goldman commenced his motion to change on January 10, 2020. Until that point, nothing done by either party in relation to spousal support is relevant to this analysis on reasonableness.

[74] It is obvious, from the dates on their offers, that the parties, early on, began to talk about settling Dr. Goldman’s claim. The settlement offers provided by each began approximately one year after the date that Dr. Goldman commenced the Motion to Change. They continued to be regularly exchanged down to a point approximately one month before the focused hearing.

[75] While Dr. Goldman’s offers did not meet the requirements of Rule 18(14), there is no doubt that each provided for a resolution that would have resulted in a better outcome for Ms. Weiss Goldman than that provided by my order. As I have noted, it is on this basis that Mr. Macri is claiming costs on behalf of Dr. Goldman.

[76] As I have also noted, Ms. Weiss Goldman’s offers all provided for her to receive spousal support in an amount, in the case of lump sum support, or amounts, in the case of periodic payments, which far exceeded what I awarded her.

[77] Ms. Lloyd submitted that unreasonableness does not lie in the fact that the offers served by the parties were far apart as to quantum. She rejected Mr. Macri’s claim that Ms. Weiss Goldman was not making a genuine effort to settle the matter. She further noted that, as the matter got closer to a hearing, each party’s offer became “progressively compromising.”

[78] Where I do not agree with Lloyd is in relation to the reasonableness claim she makes about the quantum of support sought by Ms. Weiss Goldman in her offers. With the benefit of hindsight, it is clear that Ms. Weiss Goldman’s offers in that regard were unrealistic.

[79] Ms. Lloyd submitted, in support of her contention that it was not unreasonable for Ms. Weiss Goldman to continue making offers to settle for support at levels much higher than Dr. Goldman was proposing, that Ms. Weiss Goldman continued to do so because she did not know until I released my decision that Justice Campbell’s original support order did not contain an element of compensatory support.

[80] While that statement may be factually correct, there were warning signs that Ms. Weiss Goldman’s continuing claim for compensatory support, which was the foundation to her offers seeking increased support due to increases in Dr. Goldman’s post-separation income, was not strong before the focused hearing took place.

[81] Dr. Goldman, in his evidence, and Mr. Macri, in his factum, laid out in fairly stark terms the weaknesses in Ms. Weiss Goldman’s claim for compensatory support. In my analysis, I found that the facts underlying those assessments had been made out by and on behalf of Dr. Goldman.

[82] Despite the warning signs, none of Ms. Weiss Goldman’s offers hinted at a willingness to recognize that she might not be entitled to share in Dr. Goldman’s post-separation salary increases.

[83] An examination of Ms. Weiss-Goldman’s offers show, however, that she did, over time, show a willingness to compromise on both the duration that support would be paid to her and on whether any support ordered should be payable retroactively.

[84] She originally sought elevated support for an indefinite period, with an earlier termination provided for based on the potential of Dr. Goldman retiring, an issue that I was not asked to consider on the Motion to Change. Her later offers, however, would have had her receiving support for a lesser, defined period, usually equal to the period for which Dr. Goldman was offering to continue paying periodic support. Thus, duration became less of an issue as the offers evolved.

[85] Over time, Ms. Weiss-Goldman also offered to settle for amounts which did not include retroactive increased support based on Dr. Goldman’s increased post-separation income. This, too, reflected a willingness by Ms. Weiss Goldman to compromise.

[86] What remained throughout, however, was the basis on which she rested her claim for support in elevated amounts – that the original order was, at least, partly compensatory in nature. In my view, that became the issue that drove this matter to a hearing.

[87] Had Ms. Weiss Goldman undertaken a clear-eyed assessment of the background facts and the evidence, she may have come to the conclusion that she should abandon her claim to a significant entitlement to share in Dr. Goldman’s post-separation income increases because, in the end, the dispute was clearly about quantum.

[88] If she had done so, Ms. Weiss Goldman might very well have seen fit to serve an offer to settle that may have been acceptable to Dr. Goldman on quantum, resulting in a settlement on support in a greater amount than I ordered, because an analysis of such an offer, when compared to the cost of continuing the litigation, may have led Dr. Goldman to conclude that a less-than-ideal settlement is better than an expensive victory.

[89] Consequently, when considering Ms. Weiss Goldman’s offers as a factor in determining whether she behaved reasonably, as I am required to do under Rule 24(5)(b), I find that, by persisting in making offers based on her position that she was entitled to compensatory support and thus, a share of Dr. Goldman’s current salary, rather than focusing on an amount which might attract a favourable response from him to exit this litigation, Ms. Weiss Goldman acted unreasonably.

[90] Similarly, I find that it was unreasonable for Ms. Weiss Goldman to fail to accept Dr. Goldman’s offer of July 27, 2021, pursuant to which she would have received $6,000.00 per month for two years, his (later withdrawn) offer of September 16, 2021, pursuant to which she would have received either $6,000.00 per month for two years or a $95,000.00 lump sum payment, or even his offer of November 24, 2021, pursuant to which she would have received spousal support of $4,054.13 per month for 21 months plus a lump sum payment of $50,000.00.

[91] I agree with the submission of Mr. Macri that Ms. Weiss Goldman’s refusal to accept the reasonable offers made by Dr. Goldman “resulted in costly and unnecessary litigation.”

[92] The same conclusion can be drawn about Ms. Weiss Goldman’s unwillingness to move away in her offers to settle from claiming spousal support based on a sizable portion of Dr. Goldman’s increased post-separation income.

Rule 24(12)(a)(ii) - Time Spent by Each Party

[93] The Bill of Costs filed by Mr. Macri on behalf of Dr. Goldman indicates that, including his time and the time expended by Mr. Eberlie, his predecessor, and Mr. Eberlie’s associate, Ms. Retief, ninety (90) hours were devoted to this matter between the time that Mr. Eberlie first met with Dr. Goldman and the completion of the supplementary submissions made by Mr. Macri following the hearing of March 1, 2022.

[94] Included amongst the 90 hours for which costs are sought were time entries totaling nineteen (19) hours for work undertaken in relation to a case conference on April 6, 2021 and a settlement conference which appeared to have occurred on three separate days, July 26, September 17 and November 24, 2021.

[95] I was presented with no evidence that a costs endorsement was made at either the case conference or the settlement conference. I have examined the court record. I found no endorsement from the case conference held April 6, 2021. The endorsements from the three times that the matter was before the court for the settlement conference were all written by Justice Henderson. In none of those endorsements was there any reference to the costs of the settlement conference.

[96] A trial judge should not make an order for costs in relation to any earlier step where no costs were ordered or where there was silence on the issue. (Islam v. Rahman, 2007 ONCA 622, 228 O.A.C. 371 (C.A.); Bortnikov v. Rakitova, [2016] O.J. No. 3060 (C.A.))

[97] Given that, it stands to reason, in my view, that, when considering the time spent by each party as a factor in determining costs, the nineteen hours expended in relation to events for which costs cannot be awarded are not to be included.

[98] It has also been held that, notwithstanding the Court of Appeal’s interpretation of Rule 24(10) as it relates to the costs of earlier steps in a proceeding, “the rule was not meant to extend to steps which do not require any form of judicial intervention, such as preparation of pleadings and financial statements, property evaluations, document production, attendance at questioning, review of transcripts, compliance with undertakings, and preparation for trial.” (Houston v. Houston, [2012] O.J. No. 75 (Div. Ct.))

[99] Accordingly, I am not removing from the calculation of hours devoted to this matter by Mr. Macri and his predecessors other entries related to meetings with Dr. Goldman or preparation for and attendance on a settlement meeting which occurred on May 13, 2020. That meeting apparently did not include any form of judicial intervention. It appears that it was more in the nature of a private settlement meeting between the parties and their counsel.

[100] As a result, the ninety hours accounted for and for which a claim for costs is made in Mr. Macri’s Bill of Costs is reduced to seventy-one (71) hours.

[101] The Bill of Costs prepared by Ms. Lloyd in connection with the initial hearing date of February 1, 2022, which did not include preparation for and attendance at the subsequent hearing on March 2, 2022, appeared to be comprised of one hundred five (105) hours.

[102] Unfortunately, Ms. Lloyd’s Bill of Costs for the hearing of February 1, 2022 was appended to Mr. Macri’s submissions. It was devoid of specific details about what work was done, by whom it was done and when it was done. This is significant because, according to that Bill of Costs, four lawyers, including Ms. Lloyd, are noted as having contributed efforts to the matter to that point.

[103] Ms. Lloyd did provide me with a separate Bill of Costs covering all efforts devoted to the file by her and her colleagues from its date of inception. That Bill of Costs included, separately, the time dockets of every person who worked on the file. Beyond the four lawyers noted in the original Bill of Costs were time dockets for two additional lawyers and a law student.

[104] The information was presented in such a way as to be virtually incomprehensible unless one were to print several pages and line them up physically to see who docketed what time on what date. Then, one would need to print more separate pages and line them up against the others to determine what work was done by each person on which date.

[105] The information could have been presented in a synopsized form which would have made determining how much time was devoted to the file on events for which costs can be ordered much easier.

[106] In an effort to try to determine how much time was devoted to the entire effort by Ms. Lloyd and only her three lawyer colleagues noted on the Bill of Costs prepared for the hearing of February 1, 2022, I reviewed the time entries for the same four persons in the period after February 1, 2022, to and including March 2, 2022, allowing for time entries by Ms. Lloyd for a few days beyond that. Adding those time entries to the time entries prepared for the February 1, 2022 hearing, I came up with 132.9 hours.

[107] In his submissions on this point, when comparing Dr. Goldman’s Bill of Costs to the conclusion of the hearing with Ms. Lloyd’s Bill of Costs to the completion of the hearing on February 1, 2022, Mr. Macri wrote that “both parties spent similar amounts of time and legal resources litigating the case.” He notes, accurately, to that point that the two parties’ bills of costs were relatively equivalent. The same cannot be said when Ms. Lloyd’s overall Bill of Costs, even at the reduced hours I have calculated, is factored into the comparison.

[108] Even allowing for a reduction to 100 hours from 132.9 hours, it appears that Ms. Lloyd and her colleagues devoted 1.5 times the hours to this matter than was accounted for by Mr. Macri and his predecessors, at least as to those efforts for which costs are being claimed or disclosed.

[109] This, however, was a complex matter. Using Mr. Macri’s Bill of Costs to the end of the hearing, and accounting for those events for which costs can be claimed as set out in the Bill, I am prepared to accept that Mr. Macri and Ms. Lloyd each devoted a reasonable amount of time to the matters involved.

Rule 24(12)(a)(iii) - Any Written Offers to Settle, including those not meeting Rule 18

[110] These have already been discussed. I have found that the offers made by Dr. Goldman merited more thoughtful consideration than appears to have been given to them by Ms. Weiss Goldman, as they were the more reasonable offers seeking to bring this litigation to a negotiated resolution.

Rule 24(12)(a)(iv) - Legal Fees, including Number of Lawyers and Their Rates

[111] According to the Bill of Costs presented by Mr. Macri, he has 25 years experience at the bar. Mr. Eberlie has more than 40 years experience. While I know Ms. Retief to be a relatively recent call to the bar, I cannot say when she was called and I was not informed.

[112] Mr. Eberlie docketed his time at $500.00 per hour, an amount that seems to be in keeping with what the most senior family lawyers in London, Ontario charge their clients. Whether or not Ms. Weiss Goldman will have to pay costs at that rate is, however, a different issue.

[113] Mr. Macri docketed his time at $400.00 per hour which, given that he practices in Toronto and having regard to his experience is, again, likely in keeping with what a lawyer with his experience in Toronto would charge their client.

[114] Ms. Retief’s time was docketed at $180.00 per hour.

[115] Mr. Macri indicated that the total fees generated by him and his two predecessors for the work set out in the Bill of Costs amounted to $36,360.00, with HST thereon of $4,739.80, for a total of fees and HST in the amount of $40,099.80.

[116] A further $100 was added for necessary disbursements, making for what Mr. Macri referred to as “full indemnity” costs of $41,199.80. What Mr. Macri referred to as “substantial indemnity” costs, calculated at 75% of “full indemnity” costs, came to $30,899.25. As I have noted, Mr. Macri seeks costs, all-inclusive, of $30,000.

[117] If, however, I remove from the equation the $7,600.00 docketed by Mr. Macri for the case and settlement conferences, the total fees generated by him and his two predecessors amounted to $28,760.00. HST thereon amount to $3,738.80. If the $100.00 in disbursements are added in, the amount that Mr. Macri referred to as “full indemnity” costs would have been $32,598.80, with “substantial indemnity” costs at 75% amounting to $24,449.10.

[118] Since Mr. Macri was prepared to round down at the higher rate, I conclude that, had he excluded from his calculations the fees charged for the conferences, he would have requested costs of $24,000.00.

[119] I would be remiss to not refer at this point to the following statement made by Justice David Aston in Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330, where he wrote:

4 The court must quantify costs under rule 24 according to the factors set out in subrule 24(11)[^4]. In my view, the concept of the two traditional scales of costs is no longer the appropriate way to quantify costs under the Family Law Rules. Unlike the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194, fixed costs are the norm, not the exception. See subrule 24(10) of the Family Law Rules:

Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

This is significantly different from its companion, subrule 57.01(3) of the Rules of Civil Procedure. There is no provision in the Family Law Rules for an assessment of costs by some other court official, and no tariff of costs. Having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery. The Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs.

[120] Justice Aston’s comments were expressly approved of by the Court of Appeal in C.A.M. v. D.M., 2003 18880 (ON CA), [2003] O.J. No. 3707 at paragraph 42.

[121] In her Bills of Costs Ms. Lloyd was careful to note that, with the turning over of the year from 2021 to 2022, each of the persons who worked on the file, other than law students and the first-year lawyer, had their billable rate increased.

[122] Focusing only on Ms. Lloyd, her hourly rate in 2021 amounted to $470.00 and in 2022 amounted to $495.00. Ms. Lloyd was called to the bar in 2000. She has many years less experience than Mr. Eberlie and yet, in 2022 was charging close to what Mr. Eberlie was charging for his efforts. Perhaps much higher overheads factor into Ms. Lloyd’s hourly rate.

[123] The hourly rate for the other lawyer, called in 2019, who appeared to have provided the most assistance to Ms. Lloyd amounted to $275.00 in 2022. This, again, was greater than what was charged for the efforts of Ms. Retief, although how long she has been a lawyer is unknown to me.

[124] I was provided with no explanation as to why Ms. Lloyd’s Bill of Costs included so many persons working on the file.

Rule 24(12)(a)(vi) - Other Expenses Properly Paid or Payable

[125] The only expense noted by either counsel was the $100.00 claimed by Mr. Macri for photocopies, faxes and couriers. The amount claimed was entirely reasonable.

Rule 24(12(b) – Any Other Relevant Matter

[126] The Ontario Court of Appeal has held the following with respect to costs:

a. that “modern costs rules are designed to foster three fundamental principles: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants…”[^5]

b. that, to the first three “fundamental principles” is added a “fourth fundamental purpose,” which comes from Family Law Rule 2(2): to ensure that cases are dealt with justly[^6]; and

c. that,“[a]s the wording of [Rule 24(12)] makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.”[^7]

[127] The Court of Appeal also wrote, in Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236, that, in setting costs, a judge must consider what would be a reasonable amount for the losing party to pay to the successful party. There, Justice Epstein, on behalf of a unanimous panel on a costs appeal, wrote:

52 As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."

[128] Therefore, in setting costs in this matter, as a starting point, I am tasked with determining a reasonable and proportional amount that will partially indemnify Dr. Goldman while also sanctioning the inappropriate behaviour that I found Ms. Weiss Goldman to have engaged in and ensuring that this case has been dealt with justly.

[129] In setting that amount, I must also take into account the partial success of Ms. Weiss Goldman, while also considering her request that she not be required to pay costs due to her limited financial resources.

[130] As to the process of setting costs, Justice Pazaratz noted in Benzeroual v. Issa, [2017] O.J. No. 5385, that:

37 The assessment of costs is not a mechanical exercise. It's not just a question of adding up lawyer's dockets. Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), 2004 14579; 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe, 2010 ONSC 1044, 2010 ONSC 1044 (SCJ).

38 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. Selznick v Selznick, 2013 ONCA 35, 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis, 2005 36447 (ON SC), 2005 CarswellOnt 4956 (SCJ); Serra, (supra); Murray v. Murray, (2005) 2005 46626 (ON CA), 2005 46626 (Ont. C.A.); Guertin v Guertin, 2015 ONSC 5498, 2015 ONSC 5498 (SCJ); Jackson v. Mayerle, (supra).

44 The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake. Stetco v. Stetco, 2014 ONCA 370 (Ont. C.A.); Pagnotta v. Brown, [2002] O.J. No. 3033 (SCJ); Gale v. Gale, 2006 CarswellOnt 6328.

45 By the same token, proportionality should not result in reduced costs where the unsuccessful party has forced a long and expensive hearing. Murphy v. Murphy, 2010 ONSC 6204, 2010 ONSC 6204 (SCJ); Philippe v. Bertrand, 2015 ONSC 2449, 2015 ONSC 2449 (SCJ).

47 Ultimately, the court must engage in a balancing act:

a. The loser should not have to reimburse the winner for excessive or unnecessarily expensive litigation behaviour which might be regarded as "overkill".

b. But if the loser's unreasonable approach to the litigation forced the winner to incur significant extra legal expense, a more generous approach to indemnification will generally be appropriate.

[131] Justice Pazaratz again addressed the ability of the unsuccessful party to pay in Laidman v. Pasalic, [2020] O.J. No. 5020 as follows:

24 The paternal grandmother asks that any costs order should take into account her ability to pay. The financial implications of legal fees - and costs orders - must form part of the costs analysis. But this can be a complicated issue.

a. A costs order should take into consideration the ability of a party to pay costs. MacDonald v. Magel, (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont. CA).

b. Although they are not specified in Rule 24 as factors in determining costs, the financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs. Fyfe v. Jouppien, 2012 ONSC 97 (SCJ).

c. A party's limited financial circumstances cannot be used as a shield against any liability for costs. Ability to pay will be taken into account regarding the quantum of costs. Snih v. Snih, 2007 20774 (SCJ); Dhillon v. Gill, 2020 ONCJ 68 (OCJ). But ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. Gobin v. Gobin, (2009) 2009 ONCJ 278, 71 R.F.L. (6th) 209 (OCJ).

d. Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the Rules. Culp v. Culp, 2019 ONSC 7051 (SCJ); Mark v. Bhangari, 2010 ONSC 4638 (SCJ).

e. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). Peers v. Poupore, 2008 ONCJ 615 (OCJ); Lawrence v. Lawrence, 2017 ONCJ 431 (OCJ).

f. Those who can least afford litigation should be the most motivated to seriously pursue settlement and avoid unnecessary proceedings. Mohr v. Sweeney, 2016 ONSC 3238 (SCJ); T.L. v. D.S., 2020 ONCJ 9 (OCJ); Balsmeier v. Balsmeier, 2016 ONSC 3485 (SCJ).

g. All family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos,, 2004 ONCJ 141.

[132] Given the multiple factors that I must consider, it is hardly surprising that, in Benzeroual v. Issa, supra, Justice Pazaratz wrote at paragraph 66 that, in setting costs, “[p]recision in this type of determination is extremely difficult.”

[133] Ms. Lloyd requests that I order each party to bear their own costs failing which I should exercise my discretion to make an award of no costs in favour of Dr. Goldman.

[134] That request is made based upon Ms. Weiss Goldman’s financial circumstances. Ms. Lloyd points to the fact that, according to his financial statement sworn January 4, 2022, Dr. Goldman’s annual income is three times that of Ms. Weiss Goldman and his net worth is almost twice hers. I clearly held that, because of her needs, she will continue to receive spousal support for a period of 28 months.

[135] In support of her submission, Ms. Lloyd writes the following: “There is a clear financial imbalance between the parties. The Applicant has the means to bear his own costs. Conversely, the Respondent will have difficulty paying costs in the amount requested by the Applicant.”

[136] That may all be true. I cannot, however, ignore the fact that Ms. Weiss Goldman was presented with five offers, all of which would have given her a better outcome than she received by means of my order.

[137] As Justice Pazaratz wrote at paragraph 25 of Laidman v. Pasalic, supra:

25 The impact of a costs determination on household budgets applies to both unsuccessful and successful parties…

[138] If I were to order no costs against Ms. Weiss Goldman, having regard to her financial circumstances, I would, in effect, be

a. penalizing Dr. Goldman, despite his success, his reasonable behavior and his offers to settle;

b. ignoring Justice Pazaratz’s comments, with which I agree, set out in points c. through g. in Laidman v. Pasalic, supra;

c. disregarding my finding that Ms. Weiss Goldman behaved unreasonably by persisting in seeking increased spousal support when there was more than a reasonable likelihood that the original order for spousal support was based, not on compensation but on her needs at the time.

[139] I also simply cannot ignore the fact that Ms. Lloyd provided me with a Bill of Costs for Ms. Weiss Goldman for the entirety of the proceeding which indicated that Ms. Weiss Goldman’s “full recovery fees,” which I am equating with what she has been or will be invoiced by her counsel’s firm, amounted to $123,653.75, including HST.

[140] What Ms. Weiss Goldman pays her lawyers is between her and them. My task is to determine what is a fair, reasonable and proportional amount for Ms. Weiss Goldman to pay to Dr. Goldman as costs for this proceeding in which I found that he was the more successful party, but not the only one.

[141] While Ms. Weiss Goldman’s success must temper the amount that I award to Dr. Goldman, its effect, in turn, must also be mitigated for the reasons I earlier articulated.

[142] In effect, by the terms of their offers to settle, both parties effectively acknowledged that Dr. Goldman would likely have a continuing obligation to provide some level of support to Ms. Weiss Goldman. They also appeared to tacitly agree, through their later offers, that if the support was to be paid periodically, it would likely not be paid for a period much beyond 24 months. All of this could only occur if there was a basis in law for such continuing support, as I found was the case.

[143] As a result, having regard to the legal principles I have reviewed and my analysis of the facts and issues, while also bearing in mind that Dr. Goldman was the more successful party and is, therefore, presumptively entitled to some costs while also factoring in that Ms. Weiss Goldman does have more limited financial resources than Dr. Goldman, I have determined that the amount of costs that Ms. Weiss Goldman must pay to Dr. Goldman for the focused hearing and all work preparatory thereto is the $18,000.00, all-inclusive, that I earlier noted.

[144] An order shall issue to that effect.

“Justice T. Price”

Date: November 10, 2022

[^1]: Scipione v. Del Sordo, 2015 ONSC 5982, [2015] O.J. No. 5130 at para. 18

[^2]: Wylie v. Leclair, 2003 49737 (ON CA), [2003] O.J. No 1938, at para. 24 (C.A.)

[^3]: Osmar v. Osmar, supra, at para. 5

[^4]: Now Rule 24(12)

[^5]: Serra v. Serra, 2009 ONCA 105, [2009] O.J. No. 432

[^6]: Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625

[^7]: Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412