Superior Court of Justice – Ontario
Court File No.: 448/24
Date: February 6, 2025
RE: Jonathan Delbert Grant, Applicant
AND: Lindsay Marie Runciman, Respondent
Before: Alex Pazaratz
Counsel:
Joseph Makari, Counsel for the Applicant
Catherine Haber, Counsel for the Respondent
Costs Endorsement
Introduction
1I have reviewed written costs submissions relating to a December 11, 2024 motion which I heard; and also an October 18, 2024 motion heard by Justice Bale (who reserved costs to the judge hearing the return of the motion on December 11, 2024).
Recap of the Dispute
2A brief recap:
a. This was a bitter parenting dispute concerning two daughters, Chloe (age 22 months) and Scarlett (age 6 months).
b. Other judges had previously expressed disapproval about how aggressively the parties were litigating.
c. I noted that the parties’ materials were more focused on perpetuating the adult conflict, rather than informing the court about the children and their needs.
d. Parenting time was the main issue.
e. As of the hearing of the December 11, 2024 motion, the father was having time with Chloe 6 out of 14 overnights. His motion requested an increase to 7 out of 14 overnights. The mother sought to reduce his time to 2 overnights out of 14 in a two-week period. In my endorsement I explained why I felt each request was inappropriate and I left the father’s time as it was.
f. At the hearing of the December 11, 2024 motion the main issue was when the father’s overnights would commence in relation to the younger child Scarlett. They both agreed that by about May 2025 he would have alternate weekends. But they disagreed on when a first overnight would commence, and when it would transition to include a second overnight. I ordered a transition to overnights, earlier than the mother wanted, but not as soon as the father wanted.
Costs Submissions
3In my written endorsement I urged the parties to resolve costs, particularly having regard to Rules 24(6) (divided success) and 24(4) (successful party who has behaved unreasonably).
4But they filed written costs submissions anyway.
The Father’s Position
5The father’s position:
a. He seeks $9,000.00 “partial indemnity” costs.
b. He attached a Bill of Costs setting out counsel’s hourly rate of $300.00 and a law clerk’s hourly rate of $225.00.
c. The father was successful in establishing a graduated schedule in relation to Scarlett.
d. While his December 11, 2024 request for a slight increase in time with respect to Chloe was not successful, nonetheless he was successful in resisting the mother’s request for a drastic reduction in his time with the older child.
e. The mother was unsuccessful in relation to her entire cross-motion.
f. The father filed a severable offer to settle dated October 7, 2024.
g. Other informal offers were made.
h. The father’s total fees and disbursements were $12,712.50.
The Mother’s Position
6The mother’s position:
a. There was divided success. Neither party was more successful than the other. There should be no costs.
b. Of three issues before Justice Bale on October 18, 2024, the main issue (parenting time for the youngest child) was settled on consent, and each of the parties was successful with respect to one of the two remaining issues.
c. Of the issues before the court on December 11, 2024, neither party obtained what they requested. There was divided success.
d. The mother filed a non-severable offer dated October 10, 2024 and a severable offer dated October 24, 2024.
e. Other, informal offers were made.
f. The mother’s total fees and disbursements were $14,930.12.
Principles Governing Costs
7Costs 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 to subrule 2(2) of the Family Law Rules ("the Rules").
See Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395.
[8] There are generally three components to every contested costs determination:
See D. v. T., 2021 ONSC 4389.
a. Entitlement
b. Scale
c. Quantum
[9] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality.
See Beaver v. Hill, 2018 ONCA 840.
[10] The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy.
See Weber v. Weber, 2020 ONSC 6855; Swaby v. Foreshaw, 2024 ONCJ 111.
[11] Consideration of success is the starting point. Rule 24(1) creates a presumption of costs in favour of the successful party.
See Sims-Howarth v. Bilcliffe.
[12] A person need not be successful on all issues and substantial success is sufficient to order costs.
See Hall v. Sabri, 2011 ONSC 6342; Durkin v. Cunningham, 2015 ONSC 1741; Proulx v. Proulx, 2021 ONSC 6071; Rastkar v. Soltani, 2024 ONSC 2460; Axford v. Axford, 2024 ONSC 2864.
[13] One factor in determining success – or the magnitude of success -- is to compare the eventual order to any settlement offers that were made.
See Lawson v. Lawson; Ajiboye v. Ajiboye, 2019 ONCJ 894. Rule 18(14) sets out the consequences of a party's failure to accept an offer to settle that is as good or better than the hearing's result.
14The assessment of who is "successful" also requires consideration of Rule 18.
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.
See 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).
See Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842 (ONSC); 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.
See 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.
See 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.
See 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.
See Thomas v. Saunchez, 2022 ONCJ 532; Grujicic and Grujicic v. Trovao, 2023 ONSC 1518; Thomas v. Charles, 2024 ONCJ 138; F.S. v. N.J., 2024 ONCJ 276.
g. Even where a Rule 18(14) offer triggers “full recovery” costs, the court still has the discretion not to order full recovery costs.
See 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.
See 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.
[15] Offers are much more likely to promote settlement, narrow the issues, and result in elevated costs awards if they are severable by topic.
See 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; Axford v. Axford, 2024 ONSC 2864.
a. To trigger full recovery costs a party must do as well or better than all the terms of any offer.
See Paranavitana v. Nanayakkara, 2010 ONSC 2257; Rebiere v. Rebiere, 2015 ONSC 2129; Scipione v. Scipione, 2015 ONSC 5982.
b. Particularly where there are multiple issues, non-severable offers often end up being ineffective if success is not achieved on every component of the “package deal” which was offered.
c. While “global settlements” may have some attractiveness, non-severable offers generally have less strategic impact, particularly if the terms include both strong and weak components.
d. In some ways, non-severable offers actually increase the pressure on the party submitting the offer. “Package deal” proposals create a very high benchmark – success on every single issue – in order to trigger full recovery costs. If a non-severable offer includes even a single dubious component, it may inadvertently give the opposing party an excuse to keep litigating, with less fear of exposure to elevated costs.
e. In contrast, severable offers heighten the pressure on the recipient to seriously consider (or re-consider) whether they should continue to contest a particular issue or aspect of the case.
See D.D. and F.D. v. H.G., 2020 ONSC 1919.
f. If an offer to settle is severable, the costs consequences set out in Rule 18(14) can be applied to those parts of the offer that meet the criteria set out in the subrule.
See Paranavitana v. Nanayakkara, 2010 ONSC 2257; Scipione v. Scipione, 2015 ONSC 5982; A.M. v. S.D., 2020 ONCJ 546. 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.
See Axford v. Axford, 2024 ONSC 2864; Birmingham v. Tomkins, 2024 ONSC 3163.
[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.
See Spadacini-Kelava v. Kelava, 2021 ONSC 2490.
[17] Written offers that do not meet the formal requirements of Rule 18 can be considered when a court is exercising its discretion over costs pursuant to paragraph (iii) of clause 24(12)(a) of the rules.
See Mussa v. Imam, 2021 ONCJ 92.
Divided Success and Reasonableness
18Rule 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.
See 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.
See 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.
See Jackson v. Mayerle, 2016 ONSC 1556; Slongo v. Slongo, 2015 ONSC 3327; Norton and Norton, 2017 ONSC 5406; Dosu v. Dosu, 2022 ONSC 6205; Angle v. Angle, 2024 ONSC 1758; Axford v. Axford, 2024 ONSC 2864.
e. Where there are multiple issues, the court should consider the dominant issue(s) at trial in determining success.
See Firth v. Allerton, [2013] O.J. No. 3992; 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.
See Gomez-Pound v. Pound, [2009] O.J. No. 4161; Boland v. Boland, 2012 ONCJ 239; Arthur v. Arthur, 2019 ONSC 938; Dejong v. Dejong, 2022 ONSC 252.
19Comparative 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?
See Jackson v. Mayerle, 2016 ONSC 1556; Angle v. Angle, 2024 ONSC 1758.
[20] 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.
See Ajiboye v. Ajiboye, 2019 ONCJ 894.
[21] The court may award elevated costs where one party's conduct has been unreasonable.
See Barrett v. Watson, 2024 ONSC 1118.
22Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. Rule 24(5)(a) requires the court to examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.
[23] 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.
See Harper v. Smith, 2021 ONSC 3420; T.I. v. F.I., 2023 ONSC 3435; Rastkar v. Soltani, 2024 ONSC 2460.
[24] 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.
See John v. John, 2020 ONSC 6437; O’Brien v. Chuluunbaatar, 2019 ONCJ 882; Habibi v. Aarabi, 2022 ONSC 240.
[25] There must be some causal connection between the offensive behaviour and the conduct of the litigation, resulting in unnecessary steps or increased costs.
See Kisten v. Kosewski, 2020 ONSC 3380; Freitas v. Christopher, 2021 ONSC 5233.
[26] 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.
See 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.
[27] Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under Rule 24(4).
See Goldstein v. Walsh, 2019 ONSC 3174; Hutchinson v. Peever, 2021 ONSC 4587; Jackson v. Mayerle, 2016 ONSC 1556.
[28] Family litigation is an occasion for sober consideration and thoughtfulness rather than intemperate or self-indulgent behaviour.
See Alumari v. Ali, 2024 ONCJ 107.
[29] A high or full recovery costs award may be justified where a party persists in advancing unreasonable claims or arguments.
See 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.
Costs in Parenting Cases
30The 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.
See 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.
See Churchill v. Elliot and Ward, 2024 ONSC 2757; Axford v. Axford, 2024 ONSC 2864.
[31] Particularly where sensitive and important children’s issues are concerned, the court must encourage civil, thoughtful, and respectful dialogue — and discourage vilification and personal attacks.
See J.N. v. C.G., 2022 ONSC 2225.
Application to the Present Case
32My considerations in determining costs include the following:
a. The issues on both motions were important. The well-being of young children is always important.
b. However, both parents pursued their claims in a needlessly aggressive, destructive, wasteful, and inflammatory manner. Despite early warnings from judges their approach to this litigation was unhelpful and undesirable, both parents continued to maintain a nasty and unhelpful approach to sensitive issues.
c. I have considered the respective formal offers to settle. None of them trigger Rule 18(14) consequences (with the exception that Part 2A of the father’s severable October 7, 2024 offer relating to mid-week overnights for Chloe was matched in the final result – and this was important given the fact that the mother was actually seeking to significantly reduce the father’s overnights).
d. None of the non-Rule 18 offers trigger costs consequences either.
e. To a large extent I agree with the mother that there was generally divided success.
f. The mother says the narrow gap between the parties with respect to the introduction of overnights for Scarlett was illustrative of the fact that for the most part the parties were at least mindful of the best interests of the children (even if they were more interested in focusing on adult preferences). But the father correctly notes that it was necessary for him to bring his motion, to trigger discussion about the pace at which overnights for Scarlett would be implemented.
33“Divided success” focuses on the outcome of the motions. And here, there was divided success but not equal success. In a number of areas, most notably resisting the mother’s attempt to reduce time with Chloe, the father was more successful on important issues.
34But in assessing the reasonableness of the parties’ behaviour, the court must also consider the attitudes and behaviour which caused the motions to be brought in the first place.
a. Following separation, the mother was in a position of power. She had the ability to determine when or if the father would have time with his children.
b. These are young children, and the mother can’t be faulted for being careful. But the restrictions and limitations which she unilaterally imposed went beyond reasonable caution. That really gave the father no alternative but to bring these motions.
c. The father may not have obtained everything he wanted, and the mother may have successfully resisted some of his claims. But if he hadn’t brought these motions he would have been worse off – and more importantly, the children would have been worse off – because the mother was being excessively restrictive and controlling with respect to parenting time.
d. Indeed, even after the motions were underway, the mother continued to take unreasonable positions on some of the issues. Her request on December 11, 2024 to reduce the father’s time with Chloe from 6 out of 14 overnights to 2 out of 14 was simply unreasonable, and not at all child-focused.
Conclusion
35The bottom line:
a. Both parents are needlessly aggressive litigators. If they want to run up huge legal fees declaring war on one another, that certainly won’t be encouraged or rewarded with costs orders.
b. The large element of divided success mitigates against a significant costs order.
c. But to the extent that the father was more successful on some important issues (and matched at least one component of his severable offer) he is entitled to some costs.
36The mother shall pay to the father costs fixed in the sum of $2,000.00 inclusive of HST and disbursements.
Alex Pazaratz
Date: February 6, 2025
