COURT FILE NO.: FC-17-2080 DATE: 2023/02/02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cynthia Lyn Patterson, Applicant -and- Gregory Brian Lightfoot, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Sonya Notturno, for the Applicant Respondent, Self-Represented
HEARD: In Writing
costs ENDORSEMENT
Overview
[1] This is my decision on costs following my trial decision dated December 21, 2022, following a four-day trial on the issues of child support, parenting time and decision-making.
[2] The Applicant has provided costs submissions. She seeks costs fixed at $30,000 inclusive of HST. Her position is that she was the successful party at trial, made several offers that entitle her to costs on a higher recovery basis, that she acted reasonably, and that the Respondent acted unreasonably and in bad faith. The Applicant’s costs total $41,472.59 inclusive of tax and disbursements (approx. $21). The costs she seeks represent approximately 72% of her total costs.
[3] The Respondent did not provide me with costs submissions except for a photograph of a stack of papers. He seeks to appeal the trial decision. His efforts to appeal the decision do not impact my determination of costs.
Factors in Determining Costs
[4] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules)[^1].
[5] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.
[6] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs[^2]. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party[^3].
[7] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
(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.
[8] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).
[9] Rule 18(14) provides that a party is, unless the court orders otherwise, entitled to costs on a full recovery basis from the date an offer was served, 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. O. Reg. 114/99, r. 18(14).
[10] In addition, Rule 24(12)(a)(iii) specifically directs the Court to consider the reasonableness and proportionality of any written offers, including offers that do not meet the requirements of Rule 18, as they relate to the importance and complexity of the issues.
[11] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:
Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[12] Rule 24(5) provides guidance on how to evaluate 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.
Where the parties have divided success, the court may apportion costs as appropriate. (Rule 24(6))
[13] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
Analysis
[14] The Applicant was the successful party at trial and is presumptively entitled to an award of costs. She was successful on all of the issues – child support, parenting time and decision-making. Her success is confirmed by her offers to settle[^4] as well as the parties’ respective positions at trial.
[15] The Applicant’s offer dated April 20, 2022, entitles her to full recovery of her costs incurred after the date of her offer. The result at trial was as favourable or more favourable to the Applicant than her offer dated April 20, 2022.
[16] The Applicant’s conduct was reasonable. The Applicant did not behave unreasonably such as to warrant reducing the costs to which she would otherwise be entitled.
[17] I agree that the Respondents’ conduct was unreasonable in many respects such as to warrant a higher award of costs. This includes conduct referred to in my decision but also, importantly, conduct that extended the trial and increased the Applicant’s legal fees. Examples of this include the sample of emails sent by the Respondent to the Applicant’s lawyer that she has provided the court. These communications did not advance the litigation, but rather wasted her lawyer’s time at the Applicant’s expense. Other examples include the Respondent’s delays in providing required disclosure.
[18] The Applicant’s lawyer was called to the bar in 2002 and has an hourly rate of $375. I find this hourly rate reasonable and proportional.
[19] This was a four-day trial, and as mentioned above, I find that the Respondent increased the fees required to take the matter to trial due to his conduct. The Applicant’s fees, totalling $41,472.59 are very reasonable and proportional in the circumstances.
[20] This matter was not legally complex, but was factually complex due to the Respondent’s position, which was not upheld at trial. The matter concerned issues that were important to both parties.
[21] Taking all of the above factors into consideration, and the overall reasonableness and proportionality of all of the factors under Rule 24, I find that an award of costs fixed at $30,000 is just, reasonable and proportional.
[22] Child support was an issue at trial., as was parenting. I find that 50% of these costs are attributable to support and enforceable by FRO.
Disposition
[23] For the above reasons, I make the following orders, pursuant to the Rules of Civil Procedure and the Family Law Rules:
The Respondent shall pay the Applicant costs of the trial fixed at $30,000.
50% of these costs, being $15,000, shall be enforceable as support by the Family Responsibility Office.
This order shall bear post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”).
Justice P. MacEachern
Date: February 2, 2023
COURT FILE NO.: FC-17-2080 DATE: 2023/02/02
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Cynthia Lyn Patterson, Applicant -and- Gregory Brian Lightfoot, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Sonya Notturno, for the Applicant Respondent, Self-Represented
costs ENDORSEMENT
Justice P. MacEachern
Released: February 2, 2023
[^1]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867
[^2]: M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, at para. 40
[^3]: Berta v. Berta, 2015 ONCA 918 at para. 94
[^4]: In considering the Applicant’s offers to settle, I have not considered nor placed any weight on the Applicant’s settlement terms set out in her settlement conference brief.