Court File and Parties

COURT FILE NO.: FS-22-48 DATE: 2023 05 09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.O., Applicant AND: I.O., Respondent

BEFORE: Conlan J.

COUNSEL: Ms. F. Rashid, for J.O. Mr. S. Philbert, for I.O.

ENDORSEMENT on costs

I. The Background of the Motions

[1] In Milton, on March 30, 2023, the Court heard two motions.

[2] The Applicant mother, J.O., moved for various items of financial disclosure from the Respondent father, I.O., personally and on behalf of his company.

[3] I.O. moved for extended parenting time with the child, and for leave to have questioning, and for that questioning to take place as soon as possible and not necessarily after the disclosure meeting to be held by the Office of the Children’s Lawyer (“OCL”), and for various items of financial disclosure from the Applicant.

II. The Result of the Motions

[4] The mother’s motion was granted in its entirety, but for an amendment to one of the categories of financial disclosure sought to allow the father to redact certain confidential information contained in documentation in the names of his company’s employees.

[5] The father’s motion was granted in relatively small part. Leave for questioning was given, though that was not contested by the mother. The Court sided with the father in terms of the timing of the questioning, rejecting the mother’s position that it should only occur after the OCL disclosure meeting. Some of the items of financial disclosure sought from the mother were granted, however, the mother’s positions on the contentious items were accepted by this Court.

III. The Positions of the Parties on Costs

[6] The parties have filed written submissions on costs. The mother seeks costs in the total amount of $16,365.00, on a substantial indemnity basis. The father seeks costs in the total amount of $8,398.18, on a mixed scale of recovery ranging from partial indemnity to full indemnity, depending on the motion being assessed and the time period being considered. Alternatively, the father seeks an order for no costs awarded to either side.

IV. The Law of Costs, and an Analysis of the Law as applied to our Facts

[7] A successful party is presumptively entitled to some costs – 24(1) of the Family Law Rules (“FLR”). On neither motion was either party entirely successful. The mother was nearly wholly successful on her motion, subject to the redaction issue identified above. She was certainly much more successful on her motion than was the father. On the father’s motion, the mother was also more successful than the father. Regarding that motion, on contentious matters, the father’s success was limited to the issue of the timing of the questioning.

[8] Thus, although I agree with the father that, overall, “the degree of success achieved by the parties was therefore mixed”, I disagree with the father’s assertion that “there is no doubt that [he] obtained a greater measure of success” (paragraph 4 of the father’s written submissions on costs).

[9] Rather, in my view, the greater measure of success was obtained by the mother, and she is, thus, entitled to some costs.

[10] Settlement offers are relevant, even those that do not meet the requirements of subrule 18(14); subrules 18(16) and 24(5) FLR make that clear. The mother made an offer to settle her motion. That offer was dated March 21, 2023. It was a very reasonable offer and should have been accepted by the father, with the caveat about the redaction of certain private information of the employees. It cannot be said, however, that the mother’s said offer to settle attracts full indemnity costs consequences. The mother has the burden of proving that it does, and she cannot meet that burden because the order made by this Court was slightly “worse” for her than what she offered to settle for, in light of the redaction issue. The mother also made an offer to settle the father’s motion. That offer was dated March 24, 2023. Again, the result is that the said offer, although reasonable, does not attract full indemnity costs consequences because the offer stipulated that the questioning would occur after the OCL disclosure meeting, which stipulation this Court did not agree with and did not order. The father made two offers to settle dated March 22 and March 24, 2023. He met or exceeded neither one of them, even accounting for the fact that each offer was severable in its components, but for Part A, clause 1 of the first offer (dealing with questioning) and Part A, clause 1 of the second offer (dealing with financial disclosure sought from the mother personally, as opposed to her business).

[11] It is very difficult, if not impossible, for this Court to decipher, based on the costs materials filed on behalf of the father, what the result would be on a strict application of subrule 18(14) FLR to the very limited portions of the two offers to settle made by the father that are relevant – Part A, clause 1 of the first offer and Part A, clause 1 of the second offer. Instead, the Court will factor that into the overall analysis of what quantum of costs should be awarded to the mother. In other words, given that the mother could have accepted only Part A, clause 1 of the first offer and Part A, clause 1 of the second offer, both of those offers having been made by the father, and given that the father met or exceeded those two limited parts of those offers and, thus, would be entitled to full recovery of costs from the date of each of those two offers to settle under subrule 18(14) FLR, this Court exercises its discretion to “order otherwise”, which discretion is afforded by the subrule itself, and will instead factor that into the assessment of what scale and what amount of costs is appropriate to order in favour of the mother.

[12] The objectives of costs awards are (i) to at least partially indemnify successful litigants, and (ii) to encourage settlement, and (iii) to penalize bad conduct by litigants. In my view, the mother was more successful than the father when looked at through the lens of her own motion, and also when considered in the context of the father’s motion. Both parties tried to settle the motions, and they should be commended for that. Neither party engaged in bad conduct, in my opinion.

[13] A 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.

V. The Order of the Court on Costs

[14] Having considered the above principles, and in particular (i) the fact that the mother was definitely more successful overall than was the father and (ii) the fact that the father, however, did serve two offers to settle that were severable in their components and which, to the very limited extent of the two clauses identified above, he did meet or exceed, this Court orders that the father shall pay to the mother costs in the total amount of $12,000.00.

[15] That quantum reflects the partial indemnity figure contained in the Bill of Costs filed on behalf of the mother, rounded down to an even thousandth. That, I think, meets the ends of justice, especially considering that the mother did try to settle the matter of costs by offering to accept the sum of $11,500.00. That was a quite reasonable position for her to have taken. The father should have accepted it, saving the parties considerable time and expense.

Conlan J. Date: May 9, 2023