Court File and Parties

Court File No.: FS-21-339 Date: 2023 04 14 Superior Court of Justice - Ontario

Re: B.G., Applicant And: J.G., Respondent

Before: Conlan J., Heard in Writing

Counsel: Self-Represented, B.G. Mr. Nolan Wilson., for J.G.

Endorsement on Costs

[1] In Guelph, on March 21, 2023, this Court heard two motions.

[2] The Applicant father, B.G., moved for (i) exclusive possession of the matrimonial home, (ii) alternatively, sale of the matrimonial home, (iii) an order prohibiting the mother from moving the children away from Guelph, and (iv) an order for an equal shared parenting schedule.

[3] The Respondent mother, J.G., moved for an order that the father pay child support in the amount of $774.00 per month and spousal support in the amount of $625.00 per month, based on annual gross income figures of $71,532.00 for the father and $20,384.99 for the mother.

[4] The father’s motion was dismissed but for the order for the sale of the matrimonial home. That latter relief was granted, though strangely enough the father seemed to argue against that relief that he was seeking in his own motion when the matter was heard, even after it should have been clear to the father that the Court was not about to order exclusive possession of the matrimonial home.

[5] The mother’s motion was granted, and the father’s argument that an imputed income of $41,000.00 should be attributed to the mother was not accepted by the Court.

[6] Ultimately, the parties worked out consent terms for the sale of the matrimonial home, and the Court made an order incorporating those terms.

[7] The parties have filed written submissions on costs. The father suggests that no order as to costs ought to be made. The mother requests a total of $8,094.99 in costs.

[8] A successful party is presumptively entitled to some costs – 24(1) of the Family Law Rules (“FLR”). There can be no finding here that either party was entirely successful on the two motions, however, it is clear that the mother was more successful than the father. In his written submissions on costs, at paragraph 16, the father states that “[the mother’s] demand for support in accordance with the Guidelines was never opposed by [the father]”. That is not wholly correct, as the father is well aware that one of the major issues in contention at the hearing was the mother’s income, and the determination of that income drove the overall result on the support order.

[9] The mother is entitled to some costs.

[10] Settlement offers are relevant, even those that do not meet the requirements of subrule 18(14) – 18(16) and 24(5) FLR. The mother made an offer to settle dated March 13, 2023. It was a very reasonable offer which included terms for the sale of the matrimonial home, an equal shared parenting schedule, and child support payable by the father in the amount of $479.00 per month. There was no term for spousal support. The father made an offer to settle dated March 14, 2023. It was entirely unreasonable. It included terms that the father have exclusive possession of the matrimonial home and the mother being forced to vacate the house within two weeks after March 21st, an order that the father pay child support of $347.00 per month, and an acknowledgement that the mother owes the father nearly $50,000.00, “and counting”, for home, car, insurance, and tuition payments.

[11] The father ought to have accepted the mother’s offer to settle. Accepting that offer would have been better for the father than the ultimate outcome of the motions. Subrule 18(14) FLR applies, and the mother is entitled to full recovery of costs from March 14 through to March 21, 2023, as requested at subclause 1(b) of the mother’s written costs submissions. That figure is $6000.00.

[12] An absent or unprepared litigant risks having costs awarded against him/her on that basis alone, and a litigant who acts in bad faith shall have costs awarded against him/her on a full recovery basis – 24(7) and 24(8) FLR. Neither is applicable here, in my view. I have considered the submissions of the mother at paragraphs 8 through 14 of her argument on costs, and while I agree that the father has been somewhat unreasonable, I am not prepared to award to the mother anything more than the usual partial indemnity costs for the period pre-March 14th.

[13] The objectives of costs awards are well-settled: to at least partially indemnify successful litigants, and to encourage settlement, and to penalize bad conduct by litigants.

[14] Any costs award must be fair, just, reasonable, and proportionate, taking into account all of the relevant circumstances including but not limited to the reasonable expectations of the unsuccessful side.

[15] Having considered the above principles, this Court orders that the father shall pay to the mother costs in the total amount of $7500.00.

[16] That amounts to a reduction of about $595.00 from what the mother was seeking, on account of the fact that the Court has declined to award substantial indemnity recovery for the period up to and including March 13th.

[17] With the impending sale of the matrimonial home, there is no need to order that 50% of the total costs award be made enforceable by the Family Responsibility Office (“FRO”), as requested by the mother. Rather, the Court orders that the said $7500.00 shall be paid out of the father’s share of the net proceeds of sale.

[18] If the home has already been sold and the proceeds dealt with in a way that defeats the order made immediately above, then counsel for the mother, on notice to the father, shall advise the Court accordingly by writing a brief letter to my judicial assistant in Milton. The name and email address of my assistant may be obtained from the trial office in Guelph. I will read the letter and decide if the Court should revisit the request for FRO enforcement of half of the costs award.

Conlan J. Date: April 14, 2023