Superior Court of Justice - Ontario
Court File No.: FC-17-2422 Date: 2023/03/15
Re: G.E., Applicant And: J.E., Respondent
Before: Madam Justice M. Fraser
Counsel: Ronan Blake, for the Applicant Jonathan M. Richardson, for the Respondent
Heard: In writing
Endorsement
[1] This is a costs decision following an 8-day trial in this proceeding.
[2] The trial dealt with a multiplicity of issues, including parenting, relocation, decision-making, spousal support and child support. Within each issue there were a number of smaller issues which the parties could not agree upon. For instance, to determine the appropriate support payable, the parties disputed whether income should be imputed to the Respondent, the basis for determining the Applicant’s income, whether there should be a cap on the Respondent’s income and whether his post separation increases should be included in the income calculation.
[3] My decision was released on January 23, 2023.
[4] I asked for submissions on the issue of costs. I have received written submissions from both parties.
[5] The Applicant asks for his costs on a partial indemnity basis. The Respondent submits that the parties should each bear their own costs.
Legal Considerations
[6] Modern family cost rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants. A fourth purpose is provided for by Rule 2(2) of the Family Law Rules, O. Reg. 439/07 (the “Rules”), to ensure that cases are dealt with justly. See: Mattina v. Mattina, 2018 ONCA 867 (Ont. C.A.), at para. 10.
[7] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25.
[8] Subrule 24(1) of the Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, 2000 ONSC 22584, [2000] O.J. No. 330 (SCJ). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, 2008 ONSC 23496, [2008] O.J. No. 1978 (SCJ). The position each party took at trial should also be examined.
[9] Subrule 18 (14) of the Rules reads as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, 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.
[10] Both parties served offers during the course of this proceeding.
[11] In my view, however, no party obtained a result which was more favourable to a party than their offer and therefore I conclude that Rule 18(14) does not apply.
[12] However, if there has not been an offer made which complies with Rule 18(14), the Court still can take into account any written offer to settle when exercising its discretion over costs (Rule 18(16)).
[13] I consider the success in this proceeding to be divided.
[14] On the parenting issues, I consider the Applicant to be the successful party, given I denied the Respondent’s request to relocate the child’s residence to Sarnia. That said, the Applicant’s offers on this issue did not provide a position that proved more favourable. His position did not involve compromise in the sense that he essentially obtained the result he sought, subject only to minor changes to the parenting schedule.
[15] I consider the Respondent to have been the successful party on the financial issues mainly because the Applicant sought to cap his income by his offers and at trial which I declined to do. Substantively, this greatly impacted the result.
[16] In determining whether to exercising my discretion to order costs, I am to consider the factors set out in subrule 24(12) which provides as follows:
24 (12) In setting the amount of costs, the court shall consider,
(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.
[17] Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(12)(a) (1) above). It reads as follows:
DECISION ON 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.
[18] Family law litigants are responsible for and accountable for the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.
[19] Costs must be proportional to the amount in issue and the outcome. 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.
[20] Some of the issues were more complex than others. The parenting issues were, for the most part, driven by the facts, including the views and preferences of the child. The Applicant’s offers to settle on this issue were not far from the result. The Respondent, on the other hand, does not appear to have been prepared to reconsider her position on the issue of relocating.
[21] The support issues were more difficult.
[22] All issues were of significance to the parties given their potential impact.
[23] I do not consider the parties’ positions to have been unreasonable or in bad faith.
[24] The Applicant made a number of offers to settle. The Respondent made one offer which did not address all issues.
[25] As stated, neither party obtained a result which was clearly more favourable to an offer. However, the result on the parenting issues was relatively equivalent to the Respondent’s offers made on those issues.
[26] The Bill of Costs provided by both counsel are, in my view, reasonable.
Conclusion
[27] Having regard to all of the considerations referred to in these reasons, I find that the Applicant is entitled to a partial award for his costs due to his relative success on the issue of relocation, parenting time and decision making. These issues consumed an equal share of the time at trial, albeit they were less complex than the financial issues.
[28] I find that a reasonable and proportionate costs award to the Applicant is $30,000.00 inclusive of recoverable disbursements and HST.
Date: March 15, 2023
