Court File and Parties

COURT FILE NO.: FC-13-FS48423 DATE: December 14, 2022 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Megan Kathleen Patricia Metcalfe, Applicant AND: Jeremy Donald Metcalfe, Respondent

BEFORE: MacNeil J.

COUNSEL: G. McLeod – Lawyer for the Applicant Respondent self-represented

ADDITIONAL REASONS CONCERNING MOTION COSTS

[1] In my decision on the Applicant’s Motion to Change, 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-Mother

[2] The Applicant-Mother requests costs on a full recovery basis in the amount of $19,700 for the preparation of pleadings and attendance at trial. Her request for costs is based on the following: (a) she was wholly successful on the motion and, therefore, is presumptively entitled to her costs; (b) the Respondent acted unreasonably in not accepting the Applicant’s offers to settle; and (c) the Respondent’s offers to settle were not reasonable as they all forced the Applicant to make significant financial sacrifices to ensure she was able to move to Windsor.

[3] The Applicant-Mother submits that Rule 18(14) of the Family Law Rules, O. Reg. 114/99 (“the FLR”) provides that full recovery costs are payable from the date of service of an offer to settle provided that same was made at least seven days prior to the commencement of trial, does not expire and is not withdrawn before the hearing starts, was not accepted, and provided that the party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[4] She contends that the terms of each of her two formal offers to settle provided terms that were as favourable as the Court’s decision, save and except for the issue of calculation of retroactive child support in respect of which there was a nominal difference between the sum ordered by the Court and the offer made by the Applicant.

[5] The Applicant-Mother submits that the Respondent-Father ought to have anticipated or expected that he would be required to pay costs to her if she was ultimately successful at trial.

Position of the Respondent-Father

[6] The Respondent-Father submits that he made multiple offers to try and settle before the trial. He also contends that he did not believe he was acting unreasonably in responding to the Motion to Change given that the Applicant-Mother wanted to move to Windsor with the parties’ son and given that paragraph 1(b) of the Divorce Order restricted relocation without his express written consent. He submits that he had to represent himself as he could not afford a lawyer and he was only doing what he thought best for his son and their relationship. Finally, he submits that he did not try to waste court time or prolong the proceedings.

Analysis

[7] Rule 24 of 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.

[8] 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.

[9] 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 CanLII 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.

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

[11] 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 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.).

[12] I am satisfied that, as the successful party, the Applicant-Mother is entitled to costs of the motion. I am not persuaded, however, that the circumstances warrant costs on a full recovery basis.

[13] 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. I have also considered that the Respondent-Father could reasonably have expected to pay costs in the event of lack of success in the litigation.

[14] After considering the costs submissions, the bill of costs and the relevant factors, I find that an award of $9,000.00 is fair, reasonable, and proportional in the circumstances.

[15] Accordingly, the Respondent-Father shall pay to the Applicant-Mother partial indemnity costs fixed in the amount of $9,000.00, inclusive of HST and disbursements. These costs are payable within 90 days.

B. MacNeil J.

MacNEIL J.

Released: December 14, 2022