Court File and Parties

Court File No.: FC-24-00000363-0000
Date: 2025-03-13
Court: Superior Court of Justice, Family Court – Ontario

Applicant: Rhianna Kristina Hassan Campbell
Respondent: Yitzhak Lewin

Before: Robert B. Reid

Counsel:
S. Brown, Counsel for the Applicant
J. Grossman, Counsel for the Respondent

Decision on Costs of Motion

Introduction

[1] The respondent was successful in securing an order setting aside the final order of Bordin J. dated August 15, 2024 and in receiving permission to file an answer, affidavit and financial statement within 30 days. As well, and as requested by the respondent, the parties were required to schedule a case conference to be heard following the respondent’s filings.

[2] The parties were encouraged to resolve the issue of costs of the motion between themselves but in the event no settlement was reached, they were invited to make written submissions to be filed by February 18, 2025. Those submissions have now been received.

[3] The respondent seeks costs in the amount of $5,351.68 on a full recovery basis based on success, the importance of the issues, and the presence of an outstanding offer to settle.

[4] The applicant submits that no costs should be ordered or alternatively that any costs awarded against the applicant should be offset by costs thrown away in the application.

Background

[5] The applicant commenced an application. It was served on counsel for the respondent who had been negotiating parenting issues. A first appearance was held on May 15, 2024. No responding material was filed by the respondent. An uncontested trial was heard on August 15, 2024, in the absence of the respondent, resulting in the order of Bordin J. which dealt with decision-making responsibility, parenting time, and child support as well as ancillary orders.

[6] The respondent received a copy of the August 15, 2024 court order on September 9, 2024 and attended at the courthouse in Hamilton on September 11, 2024 when he requested and received a copy of the court file.

[7] I concluded that proper service had been made by the applicant on counsel for the respondent regardless of whether the details of the application had been brought to the attention of the respondent personally. However, it was in the interest of justice that the respondent be permitted to respond to the matter, especially since it involved his relationship with his child.

Applicable Law

[8] The court’s discretion to award costs is established by s. 130 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The factors to be considered by the court in exercising its discretion are set out in r. 24 of the Family Law Rules, O. Reg. 114/99 as amended by O. Reg. 10/25 (“the Rules”).

[9] Rule 24 establishes a presumption that a successful party is entitled to costs of a motion. The court may consider pursuant to r. 24(14) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

a. each party’s behaviour,
b. the time spent by each party,
c. any written offers to settle including offers that do not meet the conditions of subrule (12) or the requirements of rule 18, and
d. any legal fees including the number of lawyers and their rates.

The court can also consider any other relevant matter.

[10] The consequences of failing to accept an offer to settle are as described in subrule 24(12) of the Rules. It provides that where, amongst other conditions, a party who made the offer obtains an order that is as favourable as or more favourable than the offer, the party is entitled to costs to the date the offer was served and full recovery of costs from that date.

[11] In general, courts have established that the purposes of the rules permitting awards of costs are to partially indemnify successful litigants, encourage settlement, and discourage and sanction inappropriate behaviour by litigants.

Analysis

[12] In this case, the respondent was successful in securing the order he sought. As such, he is presumptively entitled to an award of costs.

[13] The offer to settle dated November 22, 2024, satisfied the preconditions of subrule 12(12), thereby triggering the presumptive cost consequences under that rule.

[14] The offer did not include an amount payable by the respondent toward the applicant’s costs thrown away which were incurred due to his failure to respond in a timely manner. Instead, it reserved those costs to be addressed at the case conference.

[15] In my view, the applicant should not have resisted the relief requested. The respondent had no choice but to bring the motion. The potential effect of the offer to settle should have been a significant disincentive to the applicant to continue her opposition, and it is not reasonable for her to have ignored the presumptive consequences of the offer which in this case was made approximately two weeks before the notice of motion was issued.

[16] Although the hourly rates and time claimed by counsel for the respondent are reasonable, and despite his success in the result received, the problem was created initially by the respondent’s failure to respond to the application in a timely way. He argued that the problem related to a lack of communication between himself and his counsel at the time, but that is a matter to be addressed between counsel and client. As between the parties, the respondent must take some responsibility for the inaction that caused the series of events including the uncontested trial and the motion to set aside that judgment. As a result, the respondent’s costs claim will be reduced to the amount of $4,000 inclusive of HST and disbursements.

[17] In the motion decision, I addressed the issue of prejudice to the applicant based on her having incurred costs thrown away. I noted that any unfairness that might occur because the applicant had to incur such costs could be addressed in the costs submissions.

[18] The default judgment of Bordin J. included an award of costs in favour of the applicant in the amount of $5,969.79. That order was set aside by my decision on the motion. The amount of costs awarded at the uncontested hearing represented partial indemnity costs of the undefended application. No submissions were made by the applicant as to the portion of those costs that were thrown away. However, I have reviewed the bill of costs filed by the applicant for the uncontested hearing, and based on that evidence, I am prepared to ascribe the sum of $1,400 as being costs thrown away relating to the preparation for and attendance at the uncontested trial before Bordin J. for which the respondent should be responsible. That amount is to be offset against the costs award in favour of the respondent. Any entitlement of the applicant to further costs incurred prior to the uncontested hearing is a matter to be decided with the outcome of the application.

[19] The applicant submitted that she is not in a financial position to pay any costs awarded against her. While that may be the case, her financial circumstances should not be a shield to permit her to make unreasonable decisions without any fear of financial repercussions.

[20] According to counsel’s submissions, she is on pregnancy leave from her employer. The respondent has not been paying child support. As such, there is some hope that the applicant’s financial circumstances will improve with time.

[21] Based on the foregoing, there will be an order that costs of the motion, including an offset for costs thrown away, be payable by the applicant to the respondent in the all-inclusive amount of $2,600 but which are to be paid in any event of the cause, that is, at the conclusion of the litigation.

Robert B. Reid
Date: March 13, 2025