Court File and Parties

Court File No.: FC-19-881 Date: February 16, 2023 Superior Court of Justice - Ontario

Re: Nicole Mahon, Applicant And: Trevor Mahon, Respondent

Before: MacNeil J.

Counsel: C. Brandis – Lawyer for the Applicant C. Runco – Lawyer for the Respondent

Decision on Costs

[1] By my decision released December 19, 2022, the Applicant was successful in obtaining temporary relief by way of exclusive decision-making authority and the altering of the Respondent’s parenting time as it relates to the parties’ three children; and the Respondent’s cross-motion for an order that the joint decision-making responsibility and parenting terms set out in the Final Order dated September 28, 2021 remain in full force and effect was dismissed.

[2] The parties were unable to settle the issue of costs incurred in connection with the motions and made written submissions. This decision addresses those costs.

Position of the Applicant

[3] The Applicant submits that certain disclosure issues raised in her motion had been settled by the time the motion was heard, that relief regarding summer camp was no longer relevant by the return date, and that criminal charges laid against the Respondent made other relief moot. She was successful in the remaining aspects of her motion that were argued.

[4] The Applicant served an offer to settle, dated July 25, 2022, that was not accepted by the Respondent. She submits that significant fees were incurred after service of her offer and these could have been completely avoided had the Respondent accepted same. She argues that the Respondent has not acted in good faith and has caused several delays in the proceeding as a result of his disregard for the Family Law Rules, O. Reg. 114/99 (“the FLR”) and his “rash decision-making”.

[5] The Applicant requests costs on a full recovery basis in the amount of $13,540.22, all-inclusive, and made enforceable as support by the Family Responsibility Office (“FRO”).

Position of the Respondent

[6] The Respondent submits that he was acting in good faith and with the best interests of trying to preserve his relationship with his children, for their benefit. He argues that he had genuine issues for a long motion as the Applicant was seeking a very drastic interim remedy by changing the decision-making authority, and by reducing his parenting time and requiring that it be supervised.

[7] The Respondent submits that he could not agree to the relief being sought by the Applicant and that this was a reasonable position for him to take in the circumstances. His motive was not to unduly delay or extend the proceedings but to preserve a strong and positive relationship with the children. He did not take any actions or steps to unnecessarily lengthen or stall the proceedings; and he denies that he acted inappropriately. He was required to change his original lawyer of record but this did not delay things.

[8] He argues that the costs amount sought by the Applicant is not reasonable since it includes charges for the substantive Motion to Change that was commenced in May 2022. (The Applicant disputes this and points out that her submitted bill of costs begins in July 2022 and deals only with the temporary motion.)

[9] The Respondent further argues that a significant costs award against him would seriously impact his ability to pay child support and section 7 expenses for all of his children, including a child from another relationship. He notes that he is currently in receipt of social assistance and he is responsible for paying the costs of supervised parenting time.

[10] He submits that costs should be deferred until the entire matter is resolved or, alternatively, costs should be fixed in the amount of $5,000.00 to be paid at the rate of $100.00 per month.

Discussion

[11] 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.

[12] 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.

[13] 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), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22; Serra v. Serra, 2009 ONCA 395 (Ont. C.A.), at para. 8. The Ontario Court of Appeal has recognized a fourth fundamental purpose required by the FLR, namely, to ensure that cases are dealt with justly: see Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[14] Despite the presumptive provisions of Rule 18(14) of the FLR, regarding the costs consequences of a party’s failure to accept an offer to settle, the court still retains the discretion to make costs awards which are proportional, fair and reasonable in all the circumstances and to award less than full recovery costs: see B.F. v. A.N., 2023 ONSC 612, at para. 48.

[15] Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: see Beaver v. Hill, 2018 ONCA 840, at para. 12.

[16] A party's limited financial circumstances can be taken into account regarding the quantum of costs but should not be used as a shield against any liability for costs: see Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.) at para. 107.

[17] The Applicant was the successful party. Therefore, she is presumptively entitled to costs.

[18] In determining the amount to be awarded, I have taken into account the factors set out in Rule 24(12), including the following:

a. The decision-making and parenting time issues were very important to both parties. b. I find that the Applicant was reasonable in making her motion after becoming aware of the second domestic incident involving the Respondent and learning that he had left the children in the care of his former elementary schoolmate who was unknown to the Applicant. c. Given the seriousness of his conduct, and especially in light of the criminal charge laid, I find that the Respondent was unreasonable in opposing the temporary motion. However, I do not find his opposition to have been made in bad faith. d. While the Applicant did serve an offer to settle early on in the proceedings, in my view, it effectively required the Respondent to capitulate and abandon his claims to decision-making responsibility and to unsupervised parenting time with the children. e. Upon the Respondent retaining new legal counsel, a number of items were settled before the hearing. f. The time spent by the Applicant’s counsel appears to me to be reasonable. The motions were not complicated or legally complex, and this was a motion for temporary relief. Since the Applicant’s motion was more involved than the Respondent’s, it is to be expected that her legal fees would be higher. I find the hourly rates charged by the Applicant’s law firm to be reasonable but do note that the rate charged for junior counsel was very close to that charged by the Respondent’s counsel who is much more senior. Having said that, the Applicant’s law firm did not charge for senior counsel’s time in the dockets submitted. g. I have considered that the Respondent could reasonably have expected to pay costs in the event of lack of success in the litigation. h. I have also considered the Respondent’s limited financial means but only as it relates to quantum.

[19] After considering the costs submissions, the bill of costs and the relevant factors, I find that an award to the Applicant in the fixed amount of $7,000.00 is fair, reasonable, and proportional in the circumstances.

[20] I decline the Applicant’s request to order that the costs award be enforced as support by FRO since the matters argued before me did not deal with any support order issues, only decision-making responsibility and parenting time: see Edwards v. McMahon, 2020 ONSC 3382, at paras. 58-60.

[21] I also decline the Respondent’s request to make the costs payable in the monthly amount of $100.00 since I do not accept that the Applicant should have to wait more than 5½ years to be fully paid her costs.

[22] Accordingly, the Respondent shall pay to the Applicant costs fixed at $7,000.00, inclusive of HST and disbursements, and the costs are payable within 90 days.

B. MacNeil J. Released: February 16, 2023