Court File and Parties

COURT FILE NO.: FS-20-00043623-0000

DATE: 2023-12-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R.L., Applicant

AND:

M.F., Respondent

BEFORE: Kurz J.

COUNSEL: Martha McCarthy and Jonathan Robinson, for the Applicant

Judith Nicoll, for the Respondent

HEARD: October 24 - 28, & 31, November 1, 3 & 4, December 15, 2022, April 28, 2023

COSTS ENDORSEMENT

My Trial Decision

[1] I heard the stop-watch trial of this proceeding over eight days with a further day for submissions. I released two lengthy decisions, reported at 2023 ONSC 2885 and 2023 ONSC 6063.

[2] The issue which consumed most of the eight days of trial dealt with the Applicant Father’s parenting time with the parties’ two children, A., who was 16 ½ at the time of my first decision and B., who was 14 ½ at that time. There was no issue regarding those children’s primary parenting. The Mother had always been their primary caregiver, both before and after separation and the Father respected that fact. However he sought an order, based on the final recommendations of the assessor, psychologist Dr. Helen Radovanovic, that his parenting time include alternate weekends, mid-week non-overnight time and holiday overnight parenting time. Dr. Radovanovic also recommended that both children be required to resume family therapy with the Father under the auspices of psychologist, Dr. Irwin Butkowski.

[3] The Mother opposed that result. While she stated that she was willing to accept Dr. Radovanovic’s schedule, she would only do so if the children agreed. But as I wrote in my trial endorsement, “[u]nsaid of course, is the fact that the children, while not perfectly aligned, agree that they do not wish to increase the time and nature of their parenting time, particularly regarding overnight visits.” The Mother also opposed the resumption of the family counselling.

[4] As I further pointed out, the Mother had originally agreed with Dr. Radovanovic’s earlier recommendation, made nine months before her final report was released, that the Father’s parenting time not expand. At the same time, the Father opposed that recommendation and in fact unsuccessfully moved to increase his parenting time.

[5] Mainly because of her age, I ordered that A. not be required to have parenting time against her wishes. However, I ordered that B.’s parenting time with the Father continue on a non-overnight basis and not include overnights without her consent. I further ordered that B. continue in counselling with child psychologist, Dr. Irwin Butkowski and that A. may continue with that counselling if she so wishes. I further called for a six-month review of the parenting time with the Father, including the counselling with Dr. Butkowski.

[6] I was also called upon to resolve a number of financial issues that the parents were unable to agree upon. The two key financial issues were spousal support and the fate of the matrimonial home. The determination of spousal support was dependant on my findings regarding the incomes of each party. Those findings were inconsistent with the positions taken by both parties.

[7] I found that the Mother was entitled to share in the Father’s post-separation income increases to $2,032,000 per annum because of her claim to compensatory support ( a position that the Father opposed). I also found that an income of $550,000 per annum should be imputed to the Mother from July 22, 2022 onward on the basis of intentional under-employment (while finding that her income from October 1, 2021 – June 2022 was $350,000 per annum for support purposes). The Mother opposed any imputation of income.

[8] Ultimately, I ordered ongoing spousal support of $20,000 per month from January 1, 2023 for a further nine years, eight months, with a retroactive payment for the period from separation to January 1, 2023. That amount was far higher than the Father’s submission (he argued for no spousal support) and far lower than that of the Mother (who sought $32,296 per month from January 1, 2022 – December 31, 2022 and $37,498/mo. thereafter for thirteen further years).

[9] The parties resolved a number of issues on their own, both before and during trial. They included the quantum of the equalization payment, table child support, s. 7 expenses, extended health benefits, division of RESP’s and responsibility for the parties’ HELOC account.

[10] Despite that negotiating success, I was also called upon to resolve a number of other financial issues, including the valuation of various assets, wording regarding the payment of s. 7 expenses, retroactive s. 7 expenses, retroactive spousal support, quantifying the life insurance that the Father was required to maintain and post-separation adjustments. I also dismissed the Mother’s request for exclusive possession of the matrimonial home until B. finishes high school and ordered that it be partitioned and sold.

[11] At the end of the second decision, I pointed out that success was divided across a range of issues argued at trial.

Costs Arguments of the Parties

Costs Submissions of the Mother

[12] Because of the admittedly divided success, the Mother seeks a costs award in her favour of $250,000 which she describes a approximately 40% of her actual costs. She describes those costs as follows:

1. by present counsel, Ms. Nicol: $534,190.29

2. by previous counsel: $124,078.42

3. paid to other professionals: $163,671.10

4. Less $150,693.88 for attendances in which no costs ordered, three motions for which costs were ordered and post-trial steps that did not include further attendances and submissions to court.

[13] By my calculation, this nets out at $658,268.71. However, as the Father points out, this includes claims for costs that precede the commencement of this proceeding and others that come after the trial. Further, although the Mother’s Costs Brief refers to a bill of costs one is not included and the dockets presented have few details setting out the actual services provided.

[14] That being said, the Father offers no bill of costs himself. But he was simultaneously represented by both his present counsel, as well as senior counsel, Harold Niman prior to this trial, and at times during the trial, he had three counsel present in court. Having some idea from previous cases of what Ms. McCarthy and Mr. Niman charge, I have no doubt that the Father incurred legal fees at least as considerable as those of the Mother. This, of course is relevant to the reasonable costs expectations of each party.

[15] In her costs submissions, the Mother looks to her success and compares it to her offers. She states that her results exceeded her offer regarding: parenting terms, my finding that I lacked the jurisdiction to appoint a parenting coordinator, her equalization payment (which she resolved with the Father without my having to determine it) and pre-judgment interest. She adds that she was the more successful party, even if she did not beat her offer regarding spousal support, s. 7 expenses (albeit the issues between them were minor), and university expenses (an issue which the Father did not engage in but he never questioned his responsibility for his share of the children’s university expenses).

[16] The Mother continues, arguing that neither party was successful in regard to retroactive spousal support (where the Father sought repayment, while the Mother asked for an increased payment but I ordered no adjustment), the carrying costs of the matrimonial home and a retroactive s. 7 adjustment (neither of which I ordered).

[17] The Mother also points to areas where she says that the Father’s conduct falls short of unreasonableness but nonetheless was “difficult and did nothing to advance settlement”. They include: his refusal to accept her offer to buy out his interest in the matrimonial home at the price that she says his agent felt that it was worth; the fact that he lived in the matrimonial home for months after he obtained his own lodgings, a lack of disclosure regarding his $450,000 cash “rainy day fund” in his office, the fact that the trial centred on two children who were willing to see him but not on overnight visits, and his failure to produce the notes of his counsellor, David Smith (although Dr. Radovanovic stated Mr. Smith told her that they had been shredded).

Costs Submissions of the Father

[18] The Father argues that there should be no costs awarded to either party because of the divided success and the unreasonable behaviour of the Mother. In the alternative, he seeks to be awarded $50,000 in costs, a submission that appears to be more rhetorical than serious.

[19] The Father contends that the parties engaged in complex litigation, particularly regarding the children. There were two comprehensive parenting assessments within nine months of each other and he was willing to accept the recommendations of each one (in fact he only accepted the second set of recommendations). It was the Mother who was unable to agree. In the end, this trial was so delayed that by the time of its completion, I found that the children were old enough to make their own decisions or at least have a significant say in their parenting arrangements, despite the recommendations of the assessor, Dr. Radovanovic.

[20] The Father pointed to the unreasonableness of the Mother’s trial position and previous affidavits. She described him in what I referred to as “lurid” terms: as an abusive, controlling and dangerous man. Those allegations could have jeopardized his career. In the end, I rejected those claims against him, even though I did not grant the parenting relief that he had sought. The Father opines that the result would likely have been different had the trial occurred earlier, at a time that the children were younger.

[21] The Father cited other conduct by the Mother, which he characterizes as unreasonable. He spoke of her refusal to support his parenting of the children, while he never attempted her undermine her to the children. He referred to a pretrial motion to have the children testify at trial; what he characterizes as her refusal to engage in productive settlement discussions; as well as her testimony, which he characterized as difficult and evasive.

[22] The Father states that he made a number of wide-ranging offers, beginning in June 2021, while the Mother’s first comprehensive offer was made on September 23, 2022, just about a month prior to the commencement of the trial. The Father cites his offers of October 25, 2021, December 2, 2021, May 30, 2022, June 30, 2022, and September 16, 2022. To be fair, as the Mother pointed out, most of those offers were non-severable and contained terms, including no spousal support, that she could not accept.

[23] The Father further contends that the Mother’s two comprehensive pretrial offers contained errors such as double counting, which made it impossible to accept. I note that Coats J. met with the parties a number of times in an attempt to resolve matters and called upon them to make further offers. The last offer made by the Father was really a proposal in principle which was not capable of acceptance.

[24] With regard to trial process, the Father says that he obeyed my order regarding a Bruno v. DaCosta, 2020 ONCA 602, at para. 53 evidentiary agreement, while the Mother unreasonably failed to do the same.

Applicable Authorities Regarding the Setting of Costs

General Costs Principles

[25] The jurisdiction of this court to award costs arises from s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. That provision gives the court broad discretion to determine costs.

[26] Under r. 24(10)(a), courts are required "[p]romptly after dealing with a step in a case" to determine "in a summary manner ... who if anyone, is entitled to costs in relation to that step and set the amount of any costs".

[27] As the Ontario Court of Appeal noted in Serra v. Serra, 2009 ONCA 105, [2009] O.J. No. 432 (Ont. C.A.), at para. 8:

Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

[28] In Shute v. Shute, [2017] O.J. No. 4110, at para. 29, Justice Victoria Starr of the Ontario Court of Justice supplemented Serra's three costs purposes by offering a fourth that applies in family law proceedings: ensuring that the primary objective of the Family Law Rules, O. Reg 114/99, as amended ("FLR"), dealing with cases justly, is met. That finding was echoed by the Court of Appeal for Ontario in Mattina v. Mattina, 2018 ONCA 867, at para. 10, citing Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22.

[29] To those factors, Chappel J. of this court's Family Court add that "courts must also ensure that the law of costs does not become an impediment to the pursuit of justice... the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome costs consequences": Weber v. Weber, 2020 ONSC 6855, at para. 11.

[30] In Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) ("Boucher"), at para. 24, the Ontario Court of Appeal concluded that costs awards should reflect "what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties."

[31] In Beaver v. Hill, 2018 ONCA 840, at para. 10, the Court of Appeal for Ontario clarified that proportionality and reasonableness, the two key factors set out in r. 24(12)(a), are the touchstone considerations to be applied in fixing the amount of costs in family law matters.

De-Emphasis on Counsel's Hourly Rates and Time Spent

[32] In Delellis v. Delellis, 2005 36447 (ON SC), [2005] O.J. No. 4345 (S.C.J.), at para. 9, Justice David Aston of this court noted the emphasis on setting a "fair and reasonable" amount of costs for the unsuccessful party to pay that emerges from Boucher and the cases following it. Aston J. found that this approach has led to a de-emphasis on hourly rates and time spent by counsel as the key factor in fixing costs.

Scale of Costs

[33] In deciding costs in family law proceedings, judges are not constrained by the normal scale of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The court may increase or decrease what would ordinarily be an appropriate amount of costs based on the behaviour of the parties and the presence of absence of offers to settle (Beaver v. Hill, at para. 9). I add that there is no reference to any scale of costs in the Family Law Rules, other than the reference to “full recovery of costs” when a party’s offer is more favourable than the result, under in r. 18(14); and costs on a “full recovery basis” in r. 24(8) for bad faith.

Party Status does not Grant a License to Litigate Oblivious to the Consequences

[34] The right to bring or respond to a case does not grant either party a license to litigate in a manner that ignores the consequence of that litigation: Sabo v. Sabo, [2013] O.J. No. 4628 (O.C.J.), at para. 38:

Unaccepted Offers to Settle

[35] Rule 18 deals with offers to settle. Rule 18(1) defines the term "offer" as "an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer." Although r. 18(1) does not explicitly define an offer as being one in writing, the rule implicitly imposes that requirement. For example, an offer under r. 18 must be signed personally by the party making the offer and by their lawyer, if any: r. 18(2).

[36] The terms of r. 18 apply even to an offer made before the case has started: r. 18(2).

[37] Sub-rules 18 (14) - (16) deal with the cost consequences of unaccepted offers to settle. They state:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

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:

15. If the offer relates to a motion, it is made at least one day before the motion date.

16. 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.

17. The offer does not expire and is not withdrawn before the hearing starts.

18. The offer is not accepted.

19. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

COSTS CONSEQUENCES -- BURDEN OF PROOF

15. The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).

COSTS -- DISCRETION OF COURT

16. When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

[23] Rule 18(14) requires a party to meet strict requirements regarding offers if they wish to take advantage of the opportunity to obtain full indemnity costs for the period after the offer is made.

[24] In Jackson v. Mayerle, 2016 ONSC 1556, Pazaratz J. considered the requirements for an order under r. 18(14). In order to determine whether a party has obtained a result "as favourable as or more favourable than the offer", the court need not compare the offer and the result with microscopic precision. Rather, as Pazaratz J. stated at para. 47:

To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer) ... The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order... [Citations omitted]

[25] Rule 18(16) is r. 18's basket clause for offers that may attract costs consequences. Covering "any written offer to settle", r.18(16) allows the court broad discretion regarding costs, even when the requirements of r. 18(14) are not met. But despite its broad discretionary nature, nothing in the wording of r. 18(16) obviates the requirement that an unaccepted offer must meet the r. 18 formal requirements in order to attract costs consequences.

[26] All of that said, as Lemon J. pointed out in Slongo v Slongo, 2015 ONSC 3327 (S.C.J.), (rev'd. on other grounds, 2017 ONCA 272), r. 18(14) does not require the presiding justice to allow the successful party to demand a blank cheque for his costs. The principle implicitly applies to r. 18(16) as well.

Rule 24 Factors

[27] Family Law Rules r. 24 sets out the factors that the court must consider in the exercise of its discretion regarding costs. However, the court retains its ultimate discretion to determine what costs are reasonable (C.A.M. v. D.M., [2003] O.J. No. 3707, 2003 18880 (Ont. C.A.), at para. 43).

[28] The starting point, found in r. 24(1), is that the successful party is presumptively entitled to the costs of a motion, enforcement, case, or appeal. But that presumption is subject to the other r. 24 factors: Beaver v. Hill at para. 10. Further, as Rosenberg J.A. stated in C.A.M. v. D.M., at para. 41, r. 24(1) does not completely remove the court's discretion to refuse to grant costs to the successful party.

[29] Further, there is no presumption that the successful party in a family law proceeding is entitled to an amount approaching full or even substantial indemnity costs. The exceptions to that principle are bad faith (r. 24(8)) or besting an offer to settle (r. 18(14)), which can allow enhanced costs up to the point of full indemnity: Beaver v. Hill at paras. 11-13.

[30] While r. 18 deals with offers to settle and the consequences of their acceptance or rejection, r. 24 also looks to offers to settle as an important element in the determination of costs. It does so as a factor for determining the reasonableness and proportionality of a party's conduct in the litigation.

[38] Subrule 24(12) sets out the appropriate considerations in fixing the quantum of costs. It reads as follows:

(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.

Reasonable or Unreasonable Behaviour

[39] As set out above, reasonable litigation behaviour is a touchstone of the costs determination process. That point is made clear by r. 24(4), which allows the court to deprive a successful party of all or some of their costs if they have behaved unreasonably. In fact, such a party may be ordered to pay some or all of the costs of the unsuccessful party.

[40] Under r. 24(5), when the court looks to the reasonableness or unreasonableness of each party's behaviour during the course of the dispute, the following considerations apply:

1. the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

2. the reasonableness of any offer the party made; and

3. any offer the party withdrew or failed to accept.

[41] In Weber v. Weber, above, Chappel J. explains at para. 15 the reasons for the centrality of reasonable behaviour in the assessment of costs as follows:

One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. Costs awards are a means of ensuring that litigation is not utilized as a tool to harass parties, that it is conducted in an organized and responsible manner and that the resources of the justice system are not unduly drained by clearly unreasonable claims.

[42] Chappel J. adopts this trenchant statement of Spence J. of the Ontario Court of Justice in Heuss v. Surkos 2004 ONCJ 141 (Ont. C.J.), at para. 20, about the need for prudence in conducting potentially costly litigation:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.

Offers to Settle as a Factor in Determining Reasonable Behaviour

[43] In Serra, cited above, the Court of Appeal for Ontario emphasized the obligation to attempt to settle that arises from the very beginning of a family law case. In doing so, the court adopted the following statement by Spence J. in Husein v. Chatoor, 2005 ONCJ 487, [2005] O.J. No. 5715 (Ont. C.J.), at para. 30:

[P]arties have an obligation to begin to assess their respective cases at the outset of the litigation -- even before the litigation commences -- and to make all reasonable efforts to settle. Legal fees can create enormous financial burdens for litigants and it behoves neither party simply to sit back and to roll the dice while those fees continue to mount.

[Emphasis added by Court of Appeal for Ontario]

[44] In J.V.M. v. F.D.P., 2011 ONCJ 616, [2011] O.J. No. 5441 (Ont. C.J.), Sherr J. equated the failure to make an offer to settle to unreasonable behaviour under Rule 24(5) and (12). He stated at para. 5:

The failure to make an offer to settle much earlier [than trial] by either party is unreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (subrule 2(2)). This includes taking appropriate steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See Laing v. Mahmoud, 2011 ONSC 6737, [2011] O.J. No. 5134, 2011 CarswellOnt 12972 (Ont. Fam. Ct.). The failure to serve an offer to settle will be an adverse factor when assessing costs.

[45] However, in Beaver v. Hill, the Ontario Court of Appeal offered a note of caution about excessive reliance on offers to settle in determining costs when the provisions of r. 18(14) are not engaged. The service of an offer to settle may not, in itself, be sufficient to claim reasonable behaviour. The offer must contain what Nordheimer J.A., writing for the court, described at para. 16 as "... a true element of compromise." Even so:

... judges should be very cautious about relying too heavily on this factor to increase or decrease the quantum of costs, when the specific Rules regarding such offers are not directly engaged. Even under r. 24(5)(a) of the Family Law Rules, it is but one factor that is to be considered.

Conclusion on the Role of Offers in the Determination of Costs

[46] In sum, the Family Law Rules costs rules offer a number of routes to the determination of costs. One of them is through favourable offers to settle and another is through success. The scheme under r. 18 compares the ultimate order to the offers that precede it, seen through the lens of favourability to the offeror. On the other hand, r. 24(1), (4) and (6) looks to success by comparing the result to the relief that each party sought. Where r. 24 looks to offers, it does so only in order to determine reasonableness and proportionality, not relative success. But offers to settle are not a factor in the determination of success in a proceeding under r.24 : see DeSantis v. Hood, 2021 ONSC 5496, at paras. 40-53.

How is Success Measured Within the Context of Divided Success?

[47] When success is divided, the court has the explicit discretion under r. 24 (6) to apportion costs. But r. 24(6) does not tell the court how to do so.

[48] In Jackson v. Mayerle, 2016 ONSC 1556 (SCJ-FC), Pazaratz J. of this court’s Family Court offered an analysis of how to apportion divided success under r. 24(6). He stated that r. 24(6) requires a comparative analysis, as most family cases have multiple issues. However, those issues are not equally important, time-consuming or expensive to determine. Comparative success can also be assessed globally in relation to the whole of the case, asking:

1. How many issues were there?

2. How did the issues compare in terms of importance, complexity and time expended?

3. Was either party predominantly successful on more of the issues?

4. Was either party more responsible for unnecessary legal costs being incurred?

[49] In Thompson v. Drummond, 2018 ONSC 4762, Chappel J. added to Pazaratz J.’s analysis. She pointed out that the determination of success is not merely a mathematical exercise. Rather, the court must engage in a "contextual analysis" in which it looks first to the kinds of factors set out in Jackson v. Mayerle. If it finds that success is divided, the court will then exercise its discretion. It may simply determine costs globally. Or it may look first to success in the primary issue, but subject to "adjustments" that consider lack of success in any secondary issues, as well as any other appropriate factors. As Chappel J. wrote at para. 12:

The determination of whether success was truly "divided" does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them ... Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication ... Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case ...

[Citation omitted]

Determining Costs Promptly and in a Summary Manner

[50] That being said, a court has to be careful not to spin an attempt to allocate divided success into a trial of its own. Rule 24(10) directs the court to determine costs “promptly after dealing with a step in a proceeding” and “in a summary manner”. Yet parties increasingly offer the court highly detailed and lengthy costs arguments which, even when page limited may include dozens or even hundreds of pages as part of their submissions. Here the submissions and attachments of the two parties total 276 pages, despite my five-page limit on actual submissions. Bluntly, the court does not have the unlimited time required to engage in the microscopic analysis of relative success on each of any number of issues that many parties ask of it. Further, as r. 2(5)(e) reminds the court, one aspect of the Family Law Rules’ Primary Objective of enabling the court to deal with cases justly is a consideration of whether the likely benefits of a step justify the costs – here in judicial time.

Determining Costs After Settlement

[51] Costs of a proceeding may be awarded to a party despite the fact that a case has settled: Talbot v Talbot, 2016 ONSC 1351. However, as Templeton J. pointed out in Talbot, a judge called upon to decide the costs of steps which they did not adjudicate but which led to settlement is at a great disadvantage. That judge must, in accord with r. 24(10) decide those costs in a “summary manner”, even though those costs had not previously been decided “’[p]romptly after dealing with [the] step in a case” in question.

[52] The post-settlement judge has far less ability to determine issues relevant to costs, such as success, favourability and reasonable or unreasonable behavior than a judge adjudicating each step at the time it occurs. That is why courts in those circumstances should be reluctant to award of costs against one of two settling parties.

[53] As Leach J. wrote in Witherspoon v Witherspoon, 2015 ONSC 6378, at para. 42: “… our courts have held that, ‘where parties make a settlement as between themselves, the court ... should be very slow to make an award of costs against one of the parties’, and ‘unless there are compelling reasons to do so, costs in the circumstances of a settlement between parties ought not to be awarded by the court’. I agree with that approach…”

[54] In Davis v. Fell, 2016 ONCJ 84, O’Connell J. agreed at para. 28 with Leach’s J.’s notion that, “[u]nless there are compelling reasons to do so, costs in the circumstances of the settlement between parties ought not to be awarded by the court.” She added at para. 29 that when the court feels able to determine success based on the parties’ offers, “the divided success approach under Rule 24(6) is appropriate, and a consideration of the parties' reasonable or unreasonable behaviour must be made”.

[55] In DeSantis v. Hood , I wrote at para. 59, citing the authorities set out above:

I agree with Justices O’Connell, Leach and Templeton regarding the difficulty of determining costs in circumstances such as these in that I am called upon to make a summary determination of a claim to over $300,000 based only on brief written and oral submissions. I have heard lengthy trials where far less money is at stake.

Analysis

[56] The beginning point of my analysis here is the divided success in this proceeding, to which I alluded above and in my second trial endorsement. There, I wrote at para. 58:

58 By my reckoning, there was mixed success across the range of issues that were argued at trial. While the Mother was mainly successful in regard to parenting issues, she was not completely successful and her success was not based on many of her basic arguments regarding the Father. Further, both in my trial endorsement and this one, the results regarding the financial issues were divided.

[57] In regard to the three main issues argued in this matter, my comment above continues to ring true:

1. Parenting: The Mother was the more successful party in regard to parenting. But she was not completely successful. I did not afford both children carte blanche to determine the time that they will spend with the Father, although I allowed 16 ½ year old A. to do so. But I did not grant he same right to B., whom I ordered to continue to see the Father upon the same terms that applied before the trial. I also ordered her to continue with family counselling. I did agree with the Mother that I had no jurisdiction to require the parents to attend at parenting coordination. I will have more to say about the parenting issue when I discuss reasonable behaviour below.

2. Spousal Support: There was truly divided success between the parties regarding spousal support. My award of $20,000 per month for 9 years 8 months was far more than the Father requested but far less than the amount that the Mother sought, both in quantum and duration. In that regard, my determination of income for support purposes for the parties also represented divided success.

3. Matrimonial Home: The Father was the successful party in this issue. I did not grant the Mother the duration of exclusive possession that she sought and instead ordered that the home be partitioned and sold.

[58] Regarding reasonable behaviour, I agree with the Father that the Mother’s approach, branding him as a dangerous, controlling and abusive partner and parent was an unreasonable one. In saying that, I accept that a determination of reasonableness should not rest simply on the result. Someone can reasonably argue for a position, even if they are not successful.

[59] But here, the Mother’s evidence was weak. I found that her claims regarding the Father’s alleged abusiveness and controlling nature to be both unreliable and lacking in credibility. I found at para. 152 of my first endorsement that: “I cannot take the Mother’s allegations of family violence against the Father at face value. Far from it. I find that many of her descriptions of the Father’s conduct lack both credibility and reliability. For example, there is simply no evidence before me that supports the proposition that the Father poses a physical risk to the Mother or the children, although she strongly asserted that to the assessor and others.”

[60] The Mother’s evidence was contradicted by the Father’s strong and credible evidence on the point and that of Dr. Radovanovic, in both of her reports and her trial testimony. But the Mother was unwilling concede that her views of the Father may be overstated.

[61] That being the case, the Father’s position, seeking increased and overnight parenting time, was not an unreasonable one. It accorded with that of a very well-respected assessor and expert. But by the time that this matter reached trial, more than two and a half years post-separation, the age and maturity of the children played a far greater role in the Court’s decision making than it would have played if the trial took place closer to the parties’ date of separation.

[62] Each party claims some success on secondary issues. While I had to decide a number of them, they played little role in the time expended in this trial.

[63] Regarding the various agreements of the parties to settle particular issues, I do not intend to look behind each settlement to determine who was the more successful party and who had acted most reasonably. My comments about divided success above, apply equally to this issue.

Conclusion

[64] The theme with which I began my reasons in this matter spoke to the fact that this conflict and its attendant litigation has enacted a enormous cost on both parties and their children. Their costs submissions highlight the fact that both parties have expended enormous financial resources to reach the result that they achieved. But that fact alone does not entitle either party to further costs from the other.

[65] Based on the principles outlined above as well as my findings regarding divided success, reasonable conduct and the court’s reluctance to look behind settled terms, and then looking at the case on a holistic basis, I find that it is appropriate to order no costs of this proceeding. The scales of the various determinants and measures of costs balance roughly equally here. Neither party enjoyed a monopoly on success. Neither party beat their offer(s). Neither party had a monopoly on reasonable conduct. Accordingly, I find that neither party is entitled to a further award of costs.

DATE: 2023-12-13