Court File and Parties

Court File No.: FC1160/17 Date: April 22, 2024 Superior Court of Justice – Ontario Family Court

Re: S.S., Applicant And: A.T., Respondent

Before: SAH J.

Counsel: Alla Kikinova, for the Applicant Lawrence Blokker, for the Respondent

Heard: In Chambers, on written submissions filed

Costs Endorsement

Initialization of Names and Identifiers

[1] For reasons set out at paras. 5 to 10 of my reasons for judgment, the parties’ names and identifiers have been initialized.

Overview

[2] This is a costs endorsement regarding a five-day trial heard in February 2024. My reasons for judgement were released on March 12, 2024, S.S. v. A.T., 2024 ONSC 1489.

[3] The primary issue for trial involved the respondent’s request to relocate.

[4] Secondary issues for trial included determining what parenting time and decision-making regime were in the child’s best interests and what child support obligations existed.

[5] I denied the respondent’s request to relocate and ordered that the parties engage in equal parenting on a week-about schedule. Further, I ordered that the parties have joint decision-making responsibility. Various other orders were made under s. 28 (c) of the Children's Law Reform Act, R.S.O. 1990, c. C.12. Lastly, child support obligations were found to be owing such that the applicant would pay the respondent support, monthly.

[6] The parties could not settle costs. Submissions were received in accordance with the timelines.

Position of the Parties

Applicant’s Position

[7] The applicant seeks costs in the amount of $36,713.98, inclusive of HST and disbursements.

Respondent’s Position

[8] The respondent takes the position that there should be no costs payable to either party on account of her consent to the week-about schedule if the child remained in L[…], Ontario, and her relocation request made in good faith and on valid grounds. She also cites her limited financial means in support of her request that no costs be payable.

Legal Principles

[9] Costs are in the discretion of the Court under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This section is subject to the provisions of an Act or the rules of court.

[10] Modern costs rules 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 under r. 2(2) of the Family Law Rules, O. Reg. 114/99, (“FLR”): Mattina v. Mattina, 2018 ONCA 867.

[11] The Court of Appeal clarified that proportionality and reasonableness are the touchstone considerations to be applied in fixing the costs in family law matters: Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.

[12] Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party, subject to the factors set out in r. 24: Beaver, at para. 10.

[13] The factors to consider in setting costs are listed in r. 24(12). The Court must consider the reasonableness and proportionality of several factors as they relate to the importance and complexity of the issues.

[14] These factors include each party's behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees, any other expenses, and any other relevant matter. An award of costs is subject to: the factors in r. 24(12); r. 24(4) (unreasonable conduct of a successful party); r. 24(8) (bad faith); r. 18(14) (offers to settle); and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, at para. 94.

[15] Under r. 24(12) of the FLR, the Court must consider these factors in setting costs:

24(12)(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.

[16] Rule 24(12) requires the Court to consider proportionality. This means that a costs award must be proportional to what is at stake. Similarly, r. 24(12) requires the Court to consider reasonableness, which requires the Court to consider the parties’ reasonable expectations as to what costs they may face if unsuccessful.

Analysis

Success and Presumption of Cost

[17] The applicant submits that he is entitled to costs of the proceeding as the Court granted an order similar to the draft order he submitted at trial and almost identical to the comprehensive offer to settle served on the respondent prior to trial. This offer remained open until five minutes before the trial.

[18] I conclude, after having considered the applicant’s offer to settle and draft order, and comparing it to the order made by this Court, that the applicant is the successful party and there is a presumption of costs in his favour.

[19] I must now determine the appropriate quantum.

Importance and Complexity

[20] The issues before the Court were of equal importance to both parties as they involved where the child would be residing. Relocation cases are among the most trying and significant cases that come before the court.

[21] Though not necessarily complex, relocation cases required an analysis of several factors as set out in the legislation.

Time Spent by each Party, Legal Fees and Rates

[22] The respondent’s costs submissions did not include a bill of costs or breakdown of time spent or at least paid, as required under r. 24(12.2).

[23] Rule 24(12.2) provides that a party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party’s own fees and expenses to the Court and the other party.

[24] By failing to comply with the rule, the Court is unable to compare the time and the information submitted by the applicant to assist it in determining if it is reasonable.

[25] The applicant’s counsel is a 2010 call, charging $325 per hour. The applicant’s counsel’s law clerk charges $90 per hour. I do not view the hourly rate to be unreasonable.

[26] I have reviewed the description of work performed by the applicant’s previous counsel, now retired. None of the time spent is unreasonable.

[27] There is a lien on the applicant’s property for services provided by his former counsel in the amount of $12,079.43 for the period from December 1, 2017 to September 13, 2022.

[28] Counsel at trial spent time on the file commencing on July 31, 2023 up to and including the receipt of the Court’s decision. Time spent also includes drafting of the final order and the costs submissions.

[29] Time spent by the applicant’s counsel at trial was sufficiently described and broken down by date, with a clear indication of how many hours were spent.

[30] I take the position that the time spent was reasonable having consideration for counsel’s attendance at trial and preparation for trial.

Behaviour of the Parties

[31] The applicant submits that the respondent should have been aware of the costs consequences of taking an unreasonable position and refusing to accept his reasonable offer to settle. The applicant submits the respondent ignored the offer and insisted on proceeding to trial.

[32] Further, the applicant submits that the respondent did not make reasonable attempts to settle the matter on reasonable terms.

[33] Both parties are legally aided in this litigation, and the applicant submits that a failure to award costs would be unjust as the respondent would suffer no consequences of her decision to pursue trial while the applicant is facing liens registered against his property.

[34] The fact that both litigants received services through a funding source is not relevant to a determination of the reasonable hourly rate for counsel.

[35] The respondent submits that her motivation to relocate was based on her current partner and the prospect of employment. She takes the position that she made the request to relocate late in the proceedings, presumably not adding to extra costs, and that the request was made in good faith.

[36] The issue of decision-making ought to have been settled in my view. Despite the OCL’s recommendations, the offer made by the applicant was reasonable and was in line with what was ordered by this Court.

[37] The respondent did consent to a week-about residential agreement in L[…] early in these proceedings but took the position that parenting time exchanges should be supervised and that the applicant’s parenting time be reduced to every other weekend until he complies with the recommendations of the OCL.

[38] In my view, the respondent’s position at trial on the issue of parenting time, in the event that the court did not order the relocation, was unreasonable given the evidence and the history of care.

[39] There is no evidence that the respondent made any offers to settle and no evidence to support that she engaged in settlement discussions in any fashion.

[40] As outlined by the courts previously, those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings: Balsmeier v Balsmeier, 2016 ONSC 3485; Winiarz v. Anderson, 2020 ONCJ 238.

[41] In my view, the respondent ought to have considered the offer to settle advanced by the applicant and should have attempted to settle at least portions of this case.

[42] I note that the applicant was not entirely successful on the issue of child support.

[43] His position at trial, and as set out in his offer to settle, provided that there be no child support payable by either party. I ordered otherwise.

[44] I am aware of the respondent’s financial position having reviewed her financial statement at trial. Her limited financial circumstances cannot be a shield against any liability for costs, but courts have considered such a factor regarding the quantum of costs: Snih v. Snih, paras. 7 to 13. She will be provided with time to pay the cost award.

[45] I acknowledge that any costs award I order that the respondent pay might affect her ability to contribute to the child on an ongoing basis.

[46] I must balance this consideration with my view that the trial could have been completed in less time, thereby reducing costs, and having consideration for the applicant’s attempts to settle.

[47] I have considered the reasonableness and proportionality of the work set out in the applicant’s submissions. I find that a fair, reasonable and proportionate cost award, having regard for the undisputed evidence before me and the legislation, is $8,000, inclusive of HST and disbursements.

[48] An order shall issue as follows:

1. The respondent shall be liable to pay to the applicant his costs fixed in the amount of $8,000, inclusive of HST and disbursements, payable as follows: a) By May 31, 2024, $2,000 shall be paid; b) By July 31, 2024, $2,000 shall be paid; c) By September 30, 2024, $2,000 shall be paid; and d) By November 29, 2024, $2,000 shall be paid.

“Justice Kiran Sah” Justice Kiran Sah Date: April 22, 2024