Superior Court of Justice – Ontario – Family Court

NEWMARKET COURT FILE NO.: FC-22-2141-00

DATE: 20231221

RE: G.D., Applicant

AND:

J.D., Respondent

BEFORE: The Honourable Mr. Justice G.A. MacPherson

COUNSEL: S. Kalra, Counsel for the Applicant R. Aalto, Counsel for the Respondent

HEARD: In Chambers

RULING ON COSTS

[1] I conducted a motion in this matter on November 1, 2023. I released my Ruling on November 2, 2023. I also indicated that if the parties were unable to agree on costs, I would accept written submissions.

[2] I have received the parties’ written submissions on costs and below is my Ruling.

[3] The Applicant seeks her costs in the amount of $13,327. This amount is calculated on a full indemnity basis.

[4] The Respondent proposes that he pay costs in the amount of $7,500. This amount is calculated on a partial indemnity basis.

The Nature of the Proceeding

[5] This motion dealt with a motion for contempt advanced by the Respondent.

[6] In terms of contempt, my Order released on November 2, 2023 dismissed the Respondent’s contempt motion.

Offers to Settle

[7] On October 18, 2023, the Applicant served an Offer to Settle which proposed the Respondent adjourn the contempt motion until such time as Dr. Polak released her assessment report. On October 31, 2023 the Applicant served an Offer to Settle which proposed the Applicant make best efforts to ensure that B.D.#1 attend the Sunday visits which would be supervised.

[8] On October 31, 2023 the Respondent made an Offer to Settle which required compliance with the parenting provisions of Justice Bird’s Order, some additional parenting time and no contempt finding.

Analysis

[9] The issue of costs are designed to foster four purposes; specifically, (1) to partially indemnify the successful litigant; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules, O. Reg. 114/99, as amended, (“the Rules”) (see Mattina v. Mattina, 2018 ONCA 867).

[10] The Applicant was the most successful party based on the positions taken by the parties as it relates to their Offers to Settle, their positions at the motion, and the outcome that was achieved.

[11] As the successful party, subrule 24(1) of the Rules creates a presumption of costs in favour of the Applicant.

[12] Subrule 24(5) of the Rules 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

(5) 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.

[13] I do not think that the Respondent’s motion was unreasonable litigation behaviour. However, as was stated in my Ruling, the contempt motion was misguided and illustrative of the Respondent’s lack of insight into the family dynamic.

[14] An award of costs is subject to a number of factors, specifically those set forth in Rule 24(12). It reads as follows:

SETTING COSTS AMOUNTS

(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.

[15] In arriving at an award of costs, I am mindful that this court must exercise a discretion based on principles of reasonableness and proportionality (see Beaver v. Hill, 2018 ONCA 840).

[16] I have considered the Applicant’s success.

[17] I have considered that the parties were in the process of a section 30 assessment with Dr. Polak. I have considered that the Applicant attempted to comply with the parenting Order of Justice Bird and, despite best efforts, was unable to convince the children to attend parenting time.

[18] I have considered the Offers to Settle provided by the parties. Offers to Settle that are win lose propositions are less compelling.

[19] I have decided that legal fees and disbursements, in the amount of $10,000 are fair, reasonable and proportionate to award the Applicant considering her success, the volume of materials, the length of the motion, the lack of complexity involved, the Offers to Settle, and the positions of the parties.

Order

[20] Based on the foregoing, an Order shall issue as follows:

1. The Respondent shall, within 30 days, pay to the Applicant costs for the motion heard November 1, 2023 in the amount of $10,000 inclusive of HST.

The Honourable Justice G.A. MacPherson

Date: December 21, 2023