Irwin v. Miana, 2025 ONSC 3460

Court File No.: FC-25-373
Date: 2025/06/10
Ontario Superior Court of Justice

Re: Daniel Perry Brooks Irwin, Applicant
-and-
Carmina Mari Miana, Respondent

Before: Anne London-Weinstein
Counsel:
Giulianna Ferri, for the Applicant
Kenyah Coombs, for the Respondent
Heard: In Writing

Costs Endorsement

[1] The Applicant seeks an order for costs with respect to the recent urgent motion for exclusive possession of the matrimonial home on a full indemnity basis in the amount of $15,000.

[2] The successful party in a family law matter is presumptively entitled to costs. Rule 24(1) & (3) of the Family Law Rules, O. Reg. 114/99 as amended.

[3] A party who makes an offer to settle in relation to a step in a case is entitled to full recovery of costs from the date of the offer to the conclusion of the step, assuming certain conditions are met (Family Law Rules, Rule 24(12)). The conditions set out in Rule 24(12) applicable to this case are as follows:

• The offer was made at least one day before the motion date—offers were made on January 30 and February 18, and the motion was heard on March 25;
• N/A as this was not a trial but an urgent motion;
• The offer did not expire and was not withdrawn prior to the commencement of the hearing;
• The offer was not accepted by the Respondent; and
• The order obtained by the Applicant was as good as the offer.

[4] The Applicant attempted to resolve the issues before resort was had to litigation. On January 30, 2025, the Applicant had counsel send a letter to the Respondent offering to resolve the issues of interim possession of the home and interim parenting. The Applicant made a formal offer to settle on February 18, 2025.

[5] The Respondent did not accept either of the proposals made by the Applicant. Although the January 30th offer does not meet the conditions in Rule 24(12) or Rule 18 of the Family Law Rules, the Court is permitted to consider this offer in setting the quantum of costs (Family Law Rules, Rule 24(14)(a)(iii)). The February 18, 2025 offer to settle was made while waiting for the Application to be issued. This was a severable offer. The Application was issued and served the following day, and this offer remained open for acceptance. The Respondent did not accept any part of this offer and did not make a counteroffer.

[6] This offer was a better offer than the Court’s ultimate decision on the motion. The Applicant had offered to pay the Respondent up to $2,500 per month towards her rental and living expenses. The Court ruled that the Applicant must assist the Respondent financially, leaving it to the parties to work out the quantum of that assistance.

[7] The Applicant offered for the Respondent to have supervised visits with the child at both Family Services Ottawa as well as Renew Supervision Services. The Court did not provide particulars of the Respondent’s visits with the child, leaving it to the parties to negotiate.

[8] The Applicant did obtain a result as good or better as his February 18th offer to settle.

[9] However, at the time that the emergency motion was filed the Father sought only a parenting order and an order for exclusive possession of the matrimonial home as there was hope that the Respondent’s mental health may stabilize and the parties might reconcile. The Mother’s mental health at the time was very much the central issue driving the Court’s decision.

[10] The exercise of judicial discretion in awarding costs is guided by Rule 24 of the Family Law Rules. The factors to be considered in determining the appropriate quantum of costs to be awarded are set out in Rule 24(12) which reads as follows:

24(12) In setting the amount of costs, the court shall consider,

(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 other expense properly paid or payable; and

(b) Any other relevant matter.

[11] Rule 18(4) provides that, unless the court orders otherwise, a party is entitled to costs to the date the offer was served and full recovery of costs from that date subject to certain conditions being met. One of these terms to be met is that the party who made the offer must obtain an order that is as favourable or more favourable than the offer. To trigger the potential of full recovery costs pursuant to Rule 18(4) a party must do as well or better than all of the terms of the offer (or a severable section of an offer): Chomos v. Hamilton, 2016 ONSC 6232, at para. 19. The onus of establishing that the offer made was more favourable than the result at trial rests with the person claiming the benefit of full recovery costs: r. 18(15).

[12] In addition, r. 24(8) of the Family Law Rules provides that the court “shall decide costs on a full recovery basis” if a party has acted in bad faith. Rule 24(8) sets a fairly rigorous threshold of behaviour which might be described as egregious, before bad faith can be made out. Chomos v. Hamilton, at para 43.

[13] In this case, the Applicant has obtained an offer that is actually more favourable than the Order made by the Court. The Applicant was successful on the motion itself. The fees expended on the motion are reasonable in the circumstances. In an ordinary case, the factors to be considered, including the offer to settle, would militate in favour of an award of full indemnity costs in favour of the Applicant.

[14] However, the Court is entitled to consider 24(12)(b) which is any other relevant matter. The state of the Respondent’s mental health was the cornerstone of the Applicant’s motion for exclusive possession of the matrimonial home, and parenting responsibility for the infant child. The Respondent was admitted to hospital on a Form 1 and discharged herself over the objection of her treating psychiatrist.

[15] In my view, the mental health of the Respondent is a valid consideration in terms of assessing whether full indemnity costs should be ordered due to the rejection of the offer to settle in February. Given what I heard in this motion, I am satisfied that the mental health of the Respondent at the time, which led the court to rule in favour of the Applicant, may have impacted her ability to instruct counsel with respect to accepting an offer. Therefore, I have not awarded full indemnity costs in this matter.

[16] Costs on the motion are assessed on a partial indemnity basis in the amount of $7,583.71. As suggested by the Applicant, the costs award for the urgent motion will be deferred and paid either as a set off of any equalization determined, or paid from the Respondent’s share of the matrimonial home when it is either transferred or sold. The matrimonial home is jointly owned, mortgage free and has a total value of approximately $878,700.00 as per the Applicant’s financial statement sworn February 18, 2025.

Anne London-Weinstein
Date: June 10, 2025