Court File and Parties

COURT FILE NO.: FC-17-725 DATE: 2024/05/21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nicole Morin Axford, Applicant AND: John Berton Axford, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: John G. Cox, Counsel for the Applicant Alexandra Ogilvie, Counsel for the Applicant Martha McCarthy, Counsel for the Respondent Zechariah Martin, Counsel for the Respondent

COSTS ENDORSEMENT

[1] I have reviewed written costs submissions filed in relation to a December 13, 2023 motion.

A brief recap:

a. This was a motion by the Applicant mother seeking leave to file fresh or new evidence in relation to an appeal of an arbitration award.

b. The bitterly contested issue was whether two boys then 12 and 11 should change schools.

c. For seven years they had attended a private school in Hamilton.

d. The August 28, 2023 arbitration award ruled in favour of the father and ordered that the children should be transferred to a public school near the Respondent father’s Burlington home. The decision was immediately implemented, and the boys started the current academic year at their new school.

e. The mother appealed the arbitrator’s decision, and proposed that the children continue to attend the private school – or in the alternative that the matter be remitted for a fresh hearing before a new arbitrator.

f. The one-day appeal hearing was scheduled to be heard during the January 8, 2024 sittings.

g. The contentious issues on the mother’s November 23, 2023 motion:

i. She wanted to file evidence from parenting coordinator Jessica Braude. The father opposed this.

ii. She wanted to file evidence from the children’s therapist, Dr. Danielle Ruskin. The father opposed this.

iii. She requested an updated Views and Preferences of the Children Report by Dr. Rachel Birnbaum. The father opposed this.

h. The mother’s motion included other requests which the father consented to relating to disclosure from police, CAS, and the children’s new school. The mother also requested that the father execute consents for the continued involvement of Braude and Ruskin.

i. The mother filed two affidavits in support of her motion.

j. The father filed one affidavit in response, and also in support of his December 4, 2023 cross-motion which included the following requests:

i. Mother’s motion to be dismissed.

ii. In the alternative, father to be permitted to file the children’s recent report cards as fresh evidence.

iii. Mother to be prevented from bringing additional motions without leave.

k. Both parties filed factums and case law.

l. Counsel agreed on the legal test on a motion for further evidence. They disagreed as to whether the mother had met the test.

m. The motion was argued on December 13, 2023 and took one-half day.

n. My 21-page December 15, 2023 endorsement included the following determinations of the contentious issues:

i. The mother’s motion to file fresh evidence from Dr. Ruskin was granted.

ii. The mother’s motion to file fresh evidence from Jessica Braude was dismissed, without prejudice to a future court requesting or authorizing such evidence.

iii. An updated Voice of the Child report was to be prepared by Dr. Birnbaum.

iv. The father’s request that the mother be prevented from bringing additional motions without leave was not granted.

[2] The mother submits she was successful on the contentious issues in her motion, and the father was not successful on the contentious issues in his motion. She seeks costs on a full-recovery basis in the amount of $40,035.90.

[3] The father submits that no costs should be awarded.

[4] Costs rules are intended to foster four fundamental purposes:

a. To partially indemnify successful litigants;

b. To encourage settlement;

c. To discourage and sanction inappropriate behaviour by litigants; and

d. To ensure that cases are dealt with justly pursuant subrule 2(2) of the Family Law Rules ("the Rules"). Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395.

[5] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.

[6] Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; Peladeau v. Charlebois, 2020 ONSC 6596; Pugsley v. Adamantidou, 2021 ONCJ 590; N.P. v. D.H., 2023 ONCJ 2; F.K.T. v. A.A.H., 2023 ONCJ 185; Ali Hassan v. Abdullah, 2023 ONCJ 186; Enyedy-Goldner v. Goldner, 2024 ONSC 2727.

[7] The right to bring or respond to a case does not grant either party a license to litigate without regard to the financial and other consequences of litigation. Particularly in family court, litigants must be mindful that court proceedings are expensive, time-consuming, and stressful not only for parents but also for children and extended family. DeSantis v. Hood, 2021 ONSC 5496; Forbes v. Forbes, 2022 ONSC 1787; Churchill v. Elliot and Ward, 2024 ONSC 2757.

[8] However, the court must also ensure that the threat of costs does not interfere with access to justice. Potential litigants should not be deterred from pursuing legitimate claims out of fear of overly burdensome costs consequences. Weber v. Weber, 2020 ONSC 6855; Spadacini-Kelava v. Kelava, 2021 ONSC 2490; Thompson v. Drummond, 2018 ONSC 4762.

[9] Rules 18 and 24 govern the determination of costs in family law proceedings.

[10] Consideration of success is the starting point. Rule 24(1) creates a presumption of costs in favour of the successful party. Sims-Howarth v. Bilcliffe.

[11] A person need not be successful on all issues and substantial success is sufficient to order costs. Hall v. Sabri, 2011 ONSC 6342; Durkin v. Cunningham, 2015 ONSC 1741; Proulx v. Proulx, 2021 ONSC 6071; Rastkar v. Soltani, 2024 ONSC 2460.

[12] One factor in determining success – or the magnitude of success -- is to compare the eventual order to any settlement offers that were made. Lawson v. Lawson; Ajiboye v. Ajiboye, 2019 ONCJ 894.

[13] The mother submits that her December 7, 2023 offer to settle entitles her to full recovery costs pursuant to Rule 18(14).

a. Rule 18 sets out cost consequences where a party fails to accept an offer which the other party then meets or exceeds at trial. In that case, the successful party is entitled to costs until the offer was served, and "full recovery" of costs from that date.

b. Rule 18(4) sets out that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any. The technical requirements of Rule 18(14) must be met to attract the costs consequences that subrule. Ajiboye v. Ajiboye, 2019 ONCJ 894; Fearon v. Ellsworth, 2020 ONCJ 583; Mussa v. Imam, 2021 ONCJ 92; Weber v. Weber, 2020 ONSC 6855; M.A. v. M.E., 2021 ONCJ 619.

c. The party seeking elevated costs pursuant to Rule 18(14) has the onus of proving that the order obtained at the motion or trial is as favourable as or more favourable than the terms set out in the offer to settle (or the relevant section[s] in a severable offer). Neilipovitz v. Neilipovitz, 2014 ONSC 4509; Saroli v. Grette, 2022 ONSC 3560; Fenton v. Charles, 2023 ONCJ 74; Angle v. Angle, 2024 ONSC 1758; Ricketts v. Ricketts, 2024 ONSC 1403.

d. Offers need not be exactly the same as the order obtained. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. Wilson v. Kovalev, 2016 ONSC 163; Leclerc v. Grace, 2020 ONSC 6722; Peladeau v. Charlebois, 2020 ONSC 6596. 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. Jackson v. Mayerle, 2016 ONSC 1556; Chomos v. Hamilton, 2016 ONSC 6232.

e. When comparing an offer to the eventual result, the court may consider financial equivalency. For example, a payor’s offer of lump sum spousal support may trigger Rule 18 consequences where the net benefit to the recipient would have exceeded the time limited periodic support which was ordered at trial. Lennox v. Kaye, 2022 ONSC 4061.

f. But “close” is not good enough to attract the costs consequences of Rule 18(14). The offer must be as good or more favourable than the order obtained. Thomas v. Saunchez, 2022 ONCJ 532; Gurley v. Gurley, 2013 ONCJ 482; Grujicic v. Trovao, 2023 ONSC 1518; Thomas v. Charles, 2024 ONCJ 138.

g. The Rule 18 costs consequences are not automatic. Rather, Rule 18 creates a rebuttable presumption that does not displace judicial discretion to determine whether the cost consequences are appropriate. Arthur v. Arthur, 2019 ONSC 938; Grujicic v. Trovao, 2023 ONSC 1518.

h. Even where a Rule 18(14) offer triggers “full recovery” costs, the court still has the discretion not to order full recovery costs. C.A.M. v. D.M.. N.M.L. v. A.T.C., 2022 ONCJ 250. Despite any offer, a successful party is not entitled to a “blank cheque”. The principles of reasonableness and proportionality still prevail in determining an amount, even where there is complete success. Jackson v. Mayerle, 2016 ONSC 1556; Belair v. Bourgon, 2019 ONSC 2170; Slongo v. Slongo, 2015 ONSC 3327; Tintinalli v. Tutolo, 2022 ONSC 6276; Ricketts v. Ricketts, 2024 ONSC 1403.

[14] Wisely, the mother’s December 7, 2023 offer was severable.

a. Offers are much more likely to promote settlement, narrow the issues, and result in elevated costs awards if they are severable by topic. M.J.L. v. C.L.F., 2023 ONCJ 354; P.I. v. R.O., 2022 ONCJ 184; M.A. v. M.E., 2021 ONCJ 619; Mulik v. McFarlane, 2023 ONCJ 191.

b. However, for each independent section of a severable offer, the Rule 18(14) test remains the same. The party seeking elevated costs must establish that all of the contents of the severable section set out terms which are as favourable or more favourable than the eventual result on the topic(s) addressed in that section.

[15] With respect to the mother’s December 7, 2023 severable offer:

a. Part A dealt with disclosure from police and CAS. The mother was successful on these topics, as reflected by the consent filed by the parties at the commencement of the motion hearing. Accordingly, the Rule 18(14) costs consequences are triggered from the date of the filing of the offer to the date of the resolution of the issue. However, this was not a significantly contentious issue, nor did it require a lot of time or attention in the materials.

b. Part B dealt with fresh evidence from Jessica Braude and Dr. Danielle Ruskin. The mother obtained the requested relief in relation to Ruskin but not in relation to Braude. Accordingly, this section does not trigger Rule 18(14) elevated costs.

c. Part C dealt with an updated report from Dr. Birnbaum and updated school records. The latter was not really a contentious issue, but the updated voice of the child report was quite contentious. The mother obtained this relief. This section triggers Rule 18(14) costs consequences – but again, only from the date of the filing of the offer.

d. Part D addressed very narrow pieces of evidence about the father’s refusal to sign consent documents for Dr. Ruskin to continue her work, and his refusal/delay/limitations in consenting to Braude continuing her work. The wording of this section does not precisely trigger Rule 18(14) consequences, and in any event the discrete acknowledgement of evidence set out in this section would not have had a significant impact on costs.

[16] Even if an offer does not trigger Rule 18(14) costs consequences, Rule 18(16) allows an unaccepted offer to be considered in assessing the reasonableness and proportionality of a party’s overall conduct in the litigation. Spadacini-Kelava v. Kelava, 2021 ONSC 2490.

[17] The father filed a November 29, 2023 non-severable offer which proposed that the mother’s motion be resolved on the basis that the only fresh evidence to be adduced would be police, CAS and school records. This offer triggers no costs consequences.

[18] The father did not obtain a requested order that the mother be prevented from bringing any further motions.

[19] Without question, the mother was substantially successful with respect to her motion, and the portion relating to an updated report from Dr. Birnbaum would trigger presumptive elevated costs from the date the offer was filed. She is entitled to costs.

[20] The father submits that no costs should be ordered because there was divided success. Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate.

a. Divided success is not synonymous with equal success.

b. Most family cases have multiple issues. They are not usually equally important, time-consuming or expensive to determine. Jackson v. Mayerle, 2016 ONSC 1556; G.T.C. v. S.M.G., 2020 ONCJ 580; Kasmieh v. Hannora, 2023 ONSC 303

c. The Rule 24(6) analysis involves more than simply adding up the number of issues and running a mathematical tally of which party won more of them. Thompson v. Drummond, 2018 ONSC 4762; G.T.C. v. S.M.G., 2020 ONCJ 580; Dejong v. Dejong, 2022 ONSC 252; Vasilodimitrakis v. Homme, 2020 ONSC 4414

d. The determination of whether success was truly "divided" 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 that required adjudication. Jackson v. Mayerle, 2016 ONSC 1556; Slongo v. Slongo, 2015 ONSC 3327; Lippert v. Rodney; Norton and Norton, 2017 ONSC 5406; Dosu v. Dosu, 2022 ONSC 6205; Angle v. Angle, 2024 ONSC 1758.

e. Where there are multiple issues, the court should consider the dominant issue(s) at trial in determining success. Firth v. Allerton, 2013 ONSC 5000; Mondino v. Mondino, 2014 ONSC 1102; Rebujio v. Rosario, 2022 ONCJ 452; N.M. v. S.M., 2023 ONCJ 23; Kerr v. Moussa, 2023 ONCJ 82; F.K.T. v. A.A.H., 2023 ONCJ 185.

f. Where the court determines that success was divided, costs may be awarded to the party who was more successful on an overall global basis, or on the primary issue – subject to any further adjustments regarding comparative success on secondary issues, and any other factors relating to the litigation history of the case. Gomez-Pound v. Pound, 2009 ONCJ 500; Boland v. Boland, 2012 ONCJ 239; Arthur v. Arthur, 2019 ONSC 938; Dejong v. Dejong, 2022 ONSC 252.

[21] Comparative success can be assessed by asking some basic questions:

a. How many issues were there?

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

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

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

Jackson v. Mayerle, 2016 ONSC 1556; Angle v. Angle, 2024 ONSC 1758.

[22] I would not characterize this as a case of divided success:

a. The essence of the mother’s motion was that she wanted to adduce additional or fresh evidence from professionals about the children; their views and preferences; their emotional reactions; and the impact of the arbitrator’s decision on the important school issue.

b. The father opposed any of this fresh evidence being filed on the hearing of the appeal.

c. The mother proposed fresh from three professionals: Ruskin, Birnbaum and Braude. She was successful with respect to Ruskin and Birnbaum. In explaining my decision not to allow fresh evidence from Braude, I noted that the parenting co-ordinator’s evidence would not likely be as relevant – and that “since Ruskin and Braude worked closely together, Ruskin’s evidence would largely cover the same information about the children.”

d. By far the majority of materials and submissions related to the threshold question of whether the mother should be permitted to adduce fresh evidence about the children. The father opposed this. The mother was successful.

[23] Rule 24(4) provides that in some circumstances a successful party can be deprived of their costs – or even ordered to pay costs -- if they have behaved unreasonably. Ajiboye v. Ajiboye, 2019 ONCJ 894.

a. The father submits that this section applies to the mother.

b. His written submissions include the blanket statement: “Her conduct before, during, and after the motion was unreasonable. No costs should be awarded.”

c. He notes that after the arbitrator’s decision was released on August 30, 2023, the mother brought an urgent motion to stay the decision. That motion was unsuccessful. The reasonableness of the mother’s behaviour in relation to that “stay” motion has already been dealt with by the judge who heard that motion, as evidenced by a costs order against the mother.

d. The “fresh evidence” motion before me was distinct from the mother’s previous motion, and this time the mother was successful.

e. I find that there is no basis for a reduction of costs otherwise payable, by reason of Rule 24(4).

f. (Related to this, and on the issue of quantum, the father notes that the mother’s “stay” motion was heard as a “long motion”, and resulted in substantial indemnity costs against the mother in the sum of $15,000.00. The father suggests that any costs on this “short motion” should implicitly be less than the amount that was ordered on the earlier “long motion.” I will discuss quantum below. But I lack sufficient evidence to use an earlier unrelated motion as a yardstick by which costs on this motion should be determined.)

[24] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. Of relevance here is Rule 24(5)(a) which requires that the court shall examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.

[25] Lack of success will not, in itself, attract enhanced costs. Being unsuccessful is not necessarily the same as being unreasonable. But an unsuccessful party pursuing an unreasonable legal position may be liable for enhanced costs. Climans v. Latner, 2020 ONCA 554; Nour v. Youssef, 2021 ONSC 5539; S.W.-S. v. R.S., 2022 ONCJ 11; Wauthier v. McAuliff, 2019 ONSC 5302; Rebujio v. Rosario, 2022 ONCJ 452; Kerr v. Moussa, 2023 ONCJ 82; F.K.T. v. A.A.H., 2023 ONCJ 185; Enyedy-Goldner v. Goldner, 2024 ONSC 2727

[26] Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation. Harper v. Smith, 2021 ONSC 3420; T.I. v. F.I., 2023 ONSC 3435; Rastkar v. Soltani, 2024 ONSC 2460.

[27] Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under Rule 24(4). Goldstein v. Walsh, 2019 ONSC 3174; Hutchinson v. Peever, 2021 ONSC 4587; Jackson v. Mayerle, 2016 ONSC 1556.

[28] There must be some causal connection between the offensive behaviour and the conduct of the litigation, resulting in unnecessary steps or increased costs. Kisten v. Kosewski, 2020 ONSC 3380; Freitas v. Christopher, 2021 ONSC 5233.

[29] The reasonableness of litigation conduct must be gauged over the totality of the proceeding. A court can order increased costs to express disapproval of unreasonable conduct. The amount may be higher where a party has had to incur unnecessary added expense as a result of the other party’s unreasonable conduct. John v. John, 2020 ONSC 6437; O'Brien v. Chuluunbaatar, 2019 ONCJ 882; Habibi v. Aarabi, 2022 ONSC 240

[30] A high or full recovery costs award may be justified where a party persists in advancing unreasonable claims or arguments. Lawrence v. Lawrence, 2017 ONCJ 431; M.A.B. v. M.G.C., 2023 ONSC 3748; Thomas v. Charles, 2024 ONCJ 138; Perreault v. Goudreau, 2024 ONCJ 130; Churchill v. Elliot and Ward, 2024 ONSC 2757.

[31] In this case, the issues were important, and the legal arguments were complicated. I do not find that either party acted unreasonably.

[32] The rules in relation to costs are equally applicable in relation to parenting issues.

a. Unsuccessful parents cannot expect to be shielded from costs liability simply by claiming that they believed their proposal was in the best interests of the child. Almost all parents believe their proposal is in their child’s best interests. L.L.M. v. T.Z., 2022 ONSC 624.

b. There are strong arguments to suggest costs consequences should be more strictly enforced in parenting cases. It is in the best interests of children that their issues be resolved efficiently and amicably. Parents have an obligation to do everything possible to avoid the financial and emotional damage of protracted and needlessly destructive litigation. Churchill v. Elliot and Ward, 2024 ONSC 2757.

[33] In relation to this motion -- and in relation to this high conflict file generally -- I find that both parties have engaged in needlessly aggressive and expensive litigation.

[34] Having determined the mother is entitled to costs, the court must consider Rule 24(12) which outlines the factors to be considered in quantifying costs.

[35] There is no presumption in the Rules that provides for a general approach of "close to full recovery" costs. Rules 18 and 24 expressly contemplate full recovery in only two specific circumstances:

a. Matching/exceeding an offer to settle (Rule 18(14)).

b. Bad faith (Rule 24(8)). Beaver v. Hill.

[36] As stated, aspects of the mother’s case trigger Rule 18(14) costs consequences.

[37] Even in circumstances in which Rules 18(14) or 24(8) trigger "full recovery costs", the court still has an overriding discretion and responsibility to determine a costs award that is proportional, fair and reasonable in all the circumstances. Chomos v. Hamilton, 2016 ONSC 6232. “Full recovery” does not mean that the unsuccessful party automatically reimburses the exact amount charged by the successful party’s lawyer. Fearon v. Ellsworth, 2020 ONCJ 583; Natale v. Crupi, 2020 ONSC 8007; Volgemut v. Decristoforo, 2022 ONSC 2520; Tintinalli v. Tutolo, 2022 ONSC 6276.

[38] Even a full recovery must be measured by the factors set out in Rule 24(12) of the Rules. Not every dollar is recoverable, nor are costs a blank cheque. Kapila v. Chhina, 2023 ONSC 3261; Bell v. Placidi, 2023 ONSC 6701.

[39] Determining costs requires more than a simple mathematical totalling of how much the successful party paid their lawyer.

a. The amounts actually incurred by the successful litigant are not determinative. The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678; Kommineni v. Guggilam, 2022 ONCJ 191; Bell v. Placidi, 2023 ONSC 6701; Enyedy-Goldner v. Goldner, 2024 ONSC 2727

b. The overall objective is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes considering the amount the unsuccessful party could reasonably have expected to pay if they were unsuccessful in the litigation. Boucher v. Public Accountants Council of Ontario; Arthur v. Arthur, 2019 ONSC 938; Kerr v. Moussa, 2023 ONCJ 82; Swaby v. Foreshaw, 2024 ONCJ 111; Churchill v. Elliot and Ward, 2024 ONSC 2757

c. Lawyers can charge their own clients whatever they want – and whatever the client is willing to pay. But counsel must always be mindful that the touchstones of reasonableness and proportionality create a tipping point, beyond which the prospects of full recovery rapidly diminish. No matter how much work the successful lawyer performed, costs claims still have to reflect an amount which is fair and reasonable for the unsuccessful party to pay. If more time was spent than was reasonably necessary, that excess time will not be recoverable as costs. Boucher v. Public Accountants Council for the Province of Ontario; Selznick v. Selznick, 2013 ONCA 35; Kachra v. Skeaff, 2020 ONSC 6518; Saroli v. Grette, 2022 ONSC 3560; Moon v. Sher; Capar v. Vujnovic, 2022 ONSC 5920.

d. The emphasis on proportionality has led to a de-emphasis on hourly rates and time spent by counsel as the key factor in fixing costs. Delellis v. Delellis; Spadacini-Kelava v. Kelava, 2021 ONSC 2490; DeSantis v. Hood, 2021 ONSC 5496.

[40] Rule 24(12.1) requires that any claim for costs must be supported by documentation satisfactory to the court. This generally requires a bill of costs setting out services and corresponding legal fees with sufficient particularity to allow the court to make a determination of reasonableness and proportionality.

[41] There is no form for a bill of costs or a costs outline under the Family Law Rules. Tintinalli v. Tutolo, 2022 ONSC 6276. Whatever format is used, it is essential that the party seeking costs provide a detailed breakdown or what services were rendered and which issues the services relate to. As this court stated in Benzeroual v. Issa and Farag, 2017 ONSC 6225:

There is no absolute requirement that a bill of costs must follow an “itemized by date and task” format. But particularly where large amounts of money are being claimed, the party seeking costs has an obligation to provide sufficient information:

a. To particularize what work had to be performed and why.

b. To address varying levels of indemnification which may apply to different issues.

c. To reassure the court that costs are not currently being claimed for previous steps or events where costs have already been dealt with (or should already have been dealt with). This requires more than a generic statement that unrecoverable costs are not being claimed.

[42] Under Rule 24(12)(a)(ii) and (iv), the court must review the lawyer's rates and the "time spent by each party" on the case. But this is only part of the analysis. The emphasis is on setting a “fair and reasonable” amount of costs for the unsuccessful party to pay.

[43] The mother’s bill of costs sets out:

a. $40,035.90 full recovery (100%).

b. $32,028.72 substantial indemnity recovery (80%).

c. $20,017.95 partial indemnity recovery (50%)

[44] The father’s bill of costs totals $11,666.12 on a full recovery basis.

[45] The comparative bills assist the costs analysis:

a. A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. Smith Estate v. Rotstein, 2011 ONCA 491; Scipione v. Del Sordo, 2015 ONSC 5982; Kang v. Kang, 2020 ONSC 2571; Snively v. Gaudette, 2020 ONSC 3042; Zhang v. Guo, 2019 ONSC 5767; F.K. v. A.K. and CAS of Hamilton, 2020 ONSC 4927; Mohr v. Sweeney, 2016 ONSC 3238; Hakim v. Hakim, 2020 ONSC 6587 Laidman v. Pasalic and Laidman, 2020 ONSC 7068; Mussa v. Imam, 2021 ONCJ 92; Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 424; Pugsley v. Adamantidou, 2021 ONCJ 590; Tsavaras v. Avati, 2023 ONCJ 307; K.K. v. M.M., 2024 ONSC 1092.

b. Rule 24(12.2) requires that a party who opposes a claim for costs respecting fees or expenses shall provide documentation showing their own fees and expenses, to the court and to the other party. S.W.-S. v. R.S., 2022 ONCJ 11; M.H.S. v. M.R., 2022 ONCJ 28. An adverse inference may be drawn against a party who does not provide their own bill of costs when challenging the rates and time of the party claiming costs. Isaya v. Ozo, 2022 ONCJ 422; N.P. v. D.H., 2023 ONCJ 2; F.K.T. v. A.A.H., 2023 ONCJ 185.

c. A significant discrepancy in the amount of fees charged by the respective lawyers may prompt the court to embark upon a more detailed scrutiny of the costs claimed to ensure that the amount meets the overall objectives of reasonableness and proportionality. Consideration of the other party's bill of costs is particularly helpful if a party challenges a costs claim on the basis of alleged excess and over-lawyering. Mullin v. Sherlock, 2017 ONSC 6762; Brar v. Brar, 2017 ONSC 6372; Bielak v. Dadouch, 2017 ONSC 4255; Forbes v. Forbes, 2022 ONSC 1787

d. Where a litigant threatens to claim “significant costs” if they win, they should have a reasonable expectation that they may face a “significant costs” claim if they lose. J.N. v. C.G., 2022 ONSC 2225

e. The bill of costs of the successful party does not have to match that of the unsuccessful party. If the winner’s bill of costs is higher, the extra legal work may have been instrumental in achieving success. Nour v. Youssef, 2021 ONSC 5539. But at the very least, the unsuccessful party’s own legal bill will likely be relevant with respect to their reasonable expectation as to potential costs consequences. S.W.-S. v. R.S., 2022 ONCJ 11

f. It’s easy for the losing party to complain the winner shouldn’t have fought so hard to protect themself -- from the loser. The bottom line: if the loser is going to complain the winner’s legal bill is too high, the loser must reveal their own bill, for purposes of comparison. Otherwise, an adverse inference may be drawn against a party who challenges the successful party’s legal fees while refusing to reveal their own. S.W.-S. v. R.S., 2022 ONCJ 11; M.H.S. v. M.R., 2022 ONCJ 28; Kasmieh v. Hannora, 2023 ONSC 303

[46] There are a number of key differences in the respective bills of costs.

a. The mother lists three lawyers (John Cox 28.8 hours at $725.00 per hour); Alex Ogilvie (36.5 hours at $375.00 per hour); and Natalie Bazar (2.3 hours at $375.00 per hour).

b. The father lists one lawyer (Zechariah Martin 35.4 hours at $285.00 per hour) and a law clerk (1.0 hours at $235.00 per hour).

[47] I find that all hourly rates are appropriate given the experience of respective counsel, and the skill with which each party’s case was presented.

[48] Both Mr. Cox and Ms. Ogilvie attended on behalf of the mother for the hearing of the motion.

a. Costs for second counsel at a hearing are usually not recoverable, unless the matter was extremely complicated – or where the participation of co-counsel resulted in a significantly more efficient trial. Sepiashvili v. Sepiashvili; M.P.M. v. A.L.M., 2020 ONSC 3491; Iacobelli v. Iacobelli, 2020 ONSC 6128; E.M. v. C.V., 2023 ONSC 1178. Multiple counsel for a party on a motion or trial is uncommon.

b. The costs of more than one counsel for the successful party should not be borne by the unsuccessful party unless the factual complexity of the motion or trial dictate a need for additional counsel. Whiteside v. Govindasamy, 2021 ONSC 2991; Parmar v. Flora, 2023 ONSC 2327.

[49] In this case, I am not satisfied that the mother required two counsel to attend the hearing. More broadly, the mother has not fully explained why three lawyers needed to spend 67.6 hours dealing with the same motion where the father’s lawyer needed approximately half that amount of time.

a. I have already stated that the issues were important and legally complex.

b. But those same issues were comparably and quite effectively presented by the father’s lawyer, requiring significantly less time (despite his lack of seniority).

c. Neither bill of costs is well-particularized. But as the costs claimant, the onus is on the mother to better explain the legal services for which she seeks reimbursement. And to the extent that elevated costs pursuant to Rule 18(14) may have been triggered as of December 7, 2023 when the mother’s severable offer was filed, her bill of costs does not distinguish what work was performed before or after that operative date.

d. This sort of comparison of lawyers’ bills is never determinative. Inevitably the successful party can argue that they won precisely because their lawyer(s) spent more time on the file. But that argument has its limits, and no amount of success justifies a blank cheque approach to costs.

[50] As stated, the mother was successful and she is entitled to costs. But even without comparing the father’s bill, the mother has not met the burden of establishing that the costs she is claiming are reasonable, proportionate, and reflect the reasonable expectation of an unsuccessful litigant as to their likely costs exposure.

[51] The father shall pay to the mother costs of the December 13, 2023 motion fixed in the sum of $15,000.00 inclusive of HST and disbursements.

Released: May 21, 2024 Justice Alex Pazaratz