Anonby v. Anonby, 2025 ONSC 1460
Court File No.: FC-22-1048
Date: 2025/03/05
Ontario Superior Court of Justice
RE: Christine Anonby, Applicant
AND: Erik Anonby, Respondent
Before: Shalini Somji
Counsel: Lisa Sharp, for the Applicant; Altynay Teshebaeva, for the Respondent
Heard: In Writing
Costs Endorsement
1The Applicant mother seeks costs in the amount of $85,000 following her success at trial. The trial ran for 12.5 days and addressed parenting and property issues. The father argues that the billings are excessive and the mother engaged in unreasonable conduct such that the costs awarded should be capped at $15,000.
2The issues to be decided are: one, is the mother entitled to costs, and two, what is a fair and reasonable costs award in this case?
Issue 1: Is the Mother Entitled to Costs?
3Courts have broad discretion to determine whom costs should be paid and the quantum: s. 131(1) Courts of Justice Act, R.S.O. 1990, c. C.43, as am..
4Rule 24 sets out the legal framework for cost orders in family cases: Mattina v. Mattina, 2018 ONCA 867 at para 9.
5The starting point is that the successful party is presumptively entitled to costs: r. 24(1) of the Family Law Rules, O. Reg. 114/99 as am. (“FLR”). However, in assessing entitlement, judges must consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct of the successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8).
6The mother was entirely successful on the primary issue at trial which was the parenting of the parties’ two teenage children, one who turned 15 in the summer of 2024 and another who was 17 at the time of trial. The mother was granted decision-making responsibility for the children upon reasonable consultation with them and an order that the children reside primarily with her. The father’s request for equal parenting time and joint decision-making was denied.
7With respect to the property issues that were to be adjudicated, the mother was partially successful and obtained some financial relief for her $20,000 claim of pre-marital property. She was also successful with respect to the division of chattel.
8The mother fairly acknowledges that the parties were able to resolve some issues just prior to and during trial and has deducted a portion from her billings to account for this.
9The father argues that the mother did not respond to offers to settle and failed to file certain records in a timely fashion constituting unreasonable conduct. The father made three offers to settle on issues of parenting, property issues, and support. The father argues that the mother did not accept the offers. I do not find that to be the case. Many issues in the offers were resolved by the parties. While the mother did not accept the father’s parenting offer, it was because she disagreed with the proposals for joint decision-making and equal parenting time. This was the principal issue at trial and on which she was successful.
10Counsel for the father argues that the mother did not file certain financial statements or provide notification of witnesses in a timely manner. I did not find this to be the case. I found both parties were well-prepared for trial and made considerable efforts throughout to streamline issues. In this regard, I note that the mother’s counsel billed 32 hours for discussions and negotiations with opposing counsel indicative of both counsel’s efforts to ensure an efficient trial.
11I find the mother is the successful party and entitled to costs, and there is nothing in her conduct that would disentitle her to a costs award.
Issue 2: What Costs Amount is Fair and Reasonable?
12Modern costs rules are designed to foster the following: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) pursuant to Rule 2(2) of the Family Law Rules, to ensure that cases are dealt with justly: Mattina at para 10.
13Rule 24(12) requires a judge to consider the following in determining quantum:
(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 r. 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.
Conduct of the Father
14The mother argues that the father engaged in bad faith conduct warranting full recovery costs or alternatively, unreasonable conduct warranting an elevated costs. I respectfully disagree. There was considerable evidence led at trial of the father’s conduct during the marriage and post-separation and its impact on the family, all of which was considered in determining a parenting order in the best interests of the children. However, this conduct does not constitute, in and of itself, unreasonable conduct in litigation.
15In this case, there was a detailed parenting assessment completed by Valerie Morinville, and Justice Minnema endorsed many recommendations in the parenting assessment in his Temporary Parenting Order. However, the father disagreed with Ms. Morinville’s findings and Justice Minnema’s reliance because the findings relied on controverted evidence. The father genuinely believed that his proposal was in the best interests of his two teenage children, and he was entitled to test the credibility of the controverted evidence at trial. Ultimately, it is for the court, not the assessor, to determine what parenting order is in the children’s best interests: Strobridge v. Strobridge, para 39.
16While the father was unsuccessful in persuading the court to endorse his parenting proposal and consequently, is required to pay costs, I do not find his litigation conduct was unreasonable save for on the issue of the division of chattel. Having received from the mother clear and unequivocal evidence that she had addressed and accounted for all of the items he requested be returned to him, I find it was unreasonable for the father to pursue this claim and moreover, to expect the court to parse out and make allocations for property division of over 2,870 household items. However, given the division of chattel was not the predominant issue, I have elevated the costs award for this conduct minimally.
17Furthermore, as already noted, the parties resolved a considerable number of issues throughout the trial related to property division, support, and parenting issues unrelated to decision-making or parenting time demonstrating the father was cooperative in resolving matters.
18I also disagree with the mother’s suggestion that the father refused to support the children until Justice Minnema ordered it in 2023. While I made findings related to the father’s unfair treatment of the parties’ finances on/around the time of separation, once the parties had engaged with counsel, they entered into a consent Interim Separation Agreement dated November 5, 2021, where the father committed to pay spousal support in the amount of $2,012. He also continued to pay the mortgage and other costs for the matrimonial home, utilities, insurance, and private school fees for the children. Furthermore, Justice Minnema found that the mother’s request for the father to pay for child support, spousal support, and all of the home expenses was not realistic and would have left the father without the means to cover his own expenses.
Complexity, Billings and Rates
19The mother seeks $85,000 in costs recognizing the parties were able to resolve some issues. The mother’s total litigation costs exclusive of HST was $113,932.50. This amount constitutes 253 hours of work at counsel’s rate of $450/hour. The mother’s counsel is a 20-year call. The billings do not include preparation of the initial pleadings, conferences or previous motions.
20The bulk of the billings arose from attendance at 12.5 days of trial totaling $45,000. In addition, time was spent preparing for trial, engaging in settlement negotiations, preparing pleadings, affidavits, and submission, researching issues and preparing for examination of witnesses. In comparison, the father’s counsel billed approximately 176 hours with total billings approaching $50,000. The father’s counsel is a 10-year call and charged a lower rate of $300/hour.
21Counsel argues that the father could not have reasonably expected to pay such a high costs award. I disagree. While the mother’s billings are higher than the father’s, I do not find them unreasonable given the length of trial, the number of witnesses called, and the volume of documentary evidence and affidavits relied upon. This would have become apparent as trial preparations commenced. The issues were not complex, but did require an extensive review of the parties’ 21-year marriage, in particular because of family violence which arose at the outset of the marriage and adversely affected the parties’ relationship and parenting throughout their marriage.
Conclusion
22Proportionality and reasonableness are the “touchstone considerations” in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 84.
23The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario, para 26.
24Having considered the mother’s success, the conduct of the parties, the offers to settle, the reasonableness of the rates and billings, I find that fixed costs in the amount of $85,000 (inclusive of HST) is fair and reasonable in this case.
Order
25The father will pay the mother costs in the fixed amount of $85,000 within 30 days.
Shalini Somji
Date: March 5, 2025