Court File and Parties
Court File No.: FO-10-0067-00 Date: 2012-11-01 Ontario Court of Justice
Between: Robert Thomson, Applicant
— And —
Trina Carter, Respondent
Before: Justice D. DiGiuseppe
Costs Endorsement released on November 1, 2012
Counsel: Robert Thomson on his own behalf, applicant Tracey J. Nieckarz for the respondent
Costs Endorsement
DiGiuseppe J.:
A. BACKGROUND
[1] Robert Thomson brought a motion for contempt in respect of an order of Bode, J. dated September 30, 2011. The trial was conducted on June 19, 2012. For written reasons released on July 9, 2012, the contempt motion was dismissed.
[2] The parties were invited to make written submissions as to costs. Counsel for Ms. Carter filed submissions. Mr. Thomson did not.
[3] Counsel for Ms. Carter submitted a detailed statement of account. She argues that as the successful party on the motion, there is a presumption that her client is entitled to costs. Counsel also presented an offer to settle which was rejected by Mr. Thomson. That offer, dated May 25, 2012 and set out as an exhibit to counsel's submissions is reproduced as follows:
The Respondent shall have one additional period of access with the child, LOGAN GEORGE CARTER-THOMSON, in 2012 to compensate for missing access during Christmas of 2011. The access shall be for a period of one week commencing at 4:00 p.m. on the first day of access and end at 4:00 p.m. on the same day of the following week (for example from Monday at 4:00 p.m. until the following Monday at 4:00 p.m.). This access shall be in addition to any other access provided for in the Order of the Honourable Mr. Justice Bode dated September 30th, 2011 and may be exercised on 30 days notice to the Applicant. This access shall not take place on the following days:
December 23, 24 or 25; or
Mother's Day,
shall not be added to the 14 day block of time for summer access permitted by paragraph 8(d) of the Order should the Respondent relocated outside of the City of Thunder Bay, or to the summer access provided for herein.
If either party plans a vacation with the child, they will give the other parent a detailed itinerary as soon as practicable prior to the vacation, including the name of any flight carrier, flight number, flight times, accommodations, including address, whose home they are staying at (if it is a private residence), telephone numbers (both land-line and cell), and details as to how to contact the child during the trip.
At the Respondent's request and based on his indication that he is willing to pay the associated costs, the Applicant and the Respondent will attend such parenting co-ordination services through the Children's Centre Thunder Bay with parenting co-ordinator Donna Strickland, as Ms. Strickland may recommend for the parties.
Paragraph 6 of the Order of the Honourable Mr. Justice Bode dated September 30, 2011 is hereby amended to read as follows:
Commencing in 2012, regardless of whether the said Respondent is residing in Thunder Bay or elsewhere, he shall have the right to exercise access to the child over each Christmas holiday from December 26th at 9 a.m. until January 1st at 9:00 a.m. The Applicant will have the child in her care for the balance of the Christmas school holiday.
In addition to any other access provided for in the Order, if the Respondent remains in the City of Thunder Bay, holiday access will be specified as follows:
(a) Christmas access as set out in paragraph 4 herein, during which time the Respondent's regular access will be suspended.
(b) Each party will be entitled to have the child in their care for two consecutive weeks during the summer months of July and August, during which time the Respondent's regular access will be suspended. Neither party shall combine their two consecutive week periods to have a one month period of access without the other party's prior written permission. The Respondent will provide notice as to the weeks he seeks to have with the child no later than April 1st of each year, save and except the parties acknowledge that in 2012 this date will need to be extended to May 30th in light of the date of this Offer to Settle. In the event that the parties both wish to have the same weeks, the Respondent will have his first choice of weeks in odd-numbered years, provided that once the child is of school age, the child will be in the care of the Applicant for the week prior to the commencement of school.
(c) The Applicant shall have the child in her care for Mother's Day from 10 a.m. until 4:00 p.m. and the Respondent shall have the child in his care for Father's Day from 10:00 a.m. until 4:00 p.m.
The appropriate police authority shall be directed to enforce any order made pursuant to this offer to settle, along with the Order of the Honourable Mr. Justice Bode, dated September 30, 2011.
This offer to settle may be accepted by the Respondent (Mr. Thomson) with or without the inclusion of paragraph 3 herein.
Each party will bear their own costs associated with the court proceeding.
[4] It is important to note that paragraph 3 in the Offer to Settle was severable. Further, counsel for Ms. Carter made it clear that additional access to compensate for lost access in December 2011 would be provided whether the Offer to Settle was accepted or not. The balance of the Offer to Settle addressed a variety of issues arising from the order of Bode J. These were addressed during the conferences, but did not form the subject matter of the contempt motion. Some of the matters filtered into the conferences as a result of the wording of Mr. Thomson's motion, and were thus addressed in the Offer to Settle.
[5] Although the Offer to Settle did not specifically refer to the disposition of Mr. Thomson's contempt motion, it is reasonable to assume that the offer was predicated on the motion being withdrawn. The Offer to Settle was never formally withdrawn.
[6] Counsel for Ms. Carter also submits that Mr. Thomson's conduct in the case ought to be considered. Specifically, Mr. Thomson's efforts to use the contempt motion to change custody and eliminate child support, as well as identifying a number of contempt grounds that were ultimately not pursued, all significantly increased the costs of this proceeding.
B. THE LAW
[7] Rule 24(1) of the Family Law Rules sets out the presumption that a successful party is entitled to costs. The fact that a presumption is created, acknowledges that a court must consider a number of factors to determine entitlement, including how to measure success.
[8] Subrule 24(11) sets out factors to be considered in setting the amount of costs.
24(11) A person setting the amount of costs shall consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party's behaviour in the case;
(c) the lawyer's rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[9] Offers to settle are also important in considering whether a party has been successful. Consequences of a failure to accept an offer to settle are set out in subrule 18(14) of the Family Law Rules. That rule provides:
18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
Subrule 18(16) permits the consideration of written offers to settle that do not fall within the parameters of subrule 18(14).
[10] A party who has behaved unreasonably may face cost consequences as a result of such behaviour. Subrules 24(4) and 25(5):
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine:
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[11] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[12] In C.A.M. v. D.M., [2003] O.J. No. 3707 (C.A.) at para. 40, Rosenberg J. held that the Family Law Rules have circumscribed the broad discretion granted by s. 131 of the Courts of Justice Act, but that they have not, however, completely removed the court's discretion. I note that Rule 24(11)(f) allows the court, in setting the amount of costs, to take into account "any other relevant matter." Read in conjunction with s. 131(1) of the Courts of Justice Act, there remains a discretion to award costs that appear just in the circumstances of the case, while giving effect to the Rules.
[13] The Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302).
[14] That principle was also expressed in Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495 (Ont. C.A.). At para. 4:
"In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant."
[15] While Boucher and Zesta Engineering are not family law cases, I accept the principles enunciated as applicable to family law matters.
C. ANALYSIS
[16] The central issue on the contempt motion was whether Ms. Carter had wrongfully denied Mr. Thomson Christmas access in December 2011. Other issues that were raised in Mr. Thomson's motion material, for example a failure by Ms. Carter to effectively communicate regarding child care matters, were clearly secondary and not the subject of this litigation. It was made clear to the parties, Mr. Thomson in particular, during conferences by Justice Bode and prior to trial by myself, that custody and access would not be re-litigated on the motion. It was clear to all at every stage of the proceeding that the motion would address the contempt allegation regarding Christmas access only.
[17] Ms. Carter was successful on the motion. She was not found in contempt of Justice Bode's order by denying Christmas access to Mr. Thomson. However, in my reasons for judgment, I noted that this entire proceeding could have been avoided had Ms. Carter acted in a more reasonable manner. At paragraph 48 of my judgment:
"Mr. Thomson's notice to exercise access was adequate and in accordance with the court order in every respect save for one: he failed to give that notice within 45 days before the access period was to commence. Had Mr. Thomson's initial notice of October 16, 2011, or his gentle reminder of November 2, 2011 contained the contact information that was eventually provided on November 17, 2011, I would not hesitate in finding Ms. Carter in contempt of the court order. It is clear on the evidence that she engaged in a course of conduct designed to frustrate Mr. Thomson's desire to exercise Christmas access, by ignoring the original email, delaying her response, advancing farfetched and unreasonable interpretations of parts of the court order and not engaging in a dialogue to obtain further information if she thought the information she had was deficient."
This conduct must be taken into account when considering whether to award costs, and if so, in what amount.
[18] The core question is did Mr. Thomson have to go to court to address the issue of denied access. The answer is yes, particularly since my finding at trial relied on a very strict reading of the order. However, as the litigation continued through a case conference and settlement conference, a viable alternative to trial emerged in the form of the Offer to Settle presented by Ms. Carter. That offer was comprehensive and addressed not only the core issue of the lost Christmas access, but offered suggestions to ensure this scenario would not play out in the future. These were all desired outcomes requested by Mr. Thomson at the trial. Unfortunately, he chose not to accept the offer.
[19] The spectre of costs sanctions encourages the parties to act reasonably and responsibly during the course of the litigation, including when formulating and considering offers to settle. For all of Ms. Carter's disingenuousness in dealing with Mr. Thomson in the autumn of 2011 when discussing Christmas access, she eventually did act responsibly and reasonably when that offer was tabled. As a result, given her success at trial, I find that Ms. Carter is entitled to her costs of this proceeding. What, then is an appropriate amount of costs?
[20] The Bill of Costs submitted seeks compensation on a partial indemnity basis, acknowledging my comments regarding Ms. Carter's conduct when the discussion regarding Christmas access was taking place. I note that Mr. Thomson's initial decision to bring the contempt motion was reasonable, and as such, particularly given Ms. Carter's earlier conduct, there ought to be no compensation for costs incurred prior to the Offer to Settle.
[21] The Bill of Costs submitted by counsel is not excessive and seeks to strike a fair balance taking into account Ms. Carter's earlier conduct. I am also mindful of the Court of Appeal's direction that costs awards must reflect what is fair and reasonable. I adopt Shaw J.'s comments in Zanewycz v. Manryk, [2009] O.J. No. 2810 (Sup. Ct.) in that regard at p. 20:
"I appreciate that parties incur significant costs in order to properly prosecute or defend family law matters. There has to be, however, some realistic limit on costs awarded in family law matters. Otherwise, the justice system in family law matters will not be accessible to most people in this Province. I say this not a criticism of the Bill of Costs presented on behalf of Ms. Manryk, but rather as a corollary to the comment of the Court of Appeal that costs awards should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than as an exact measure of the actual costs of the successful party."
[22] When I consider the principles discussed, taking into account the particular circumstances of this case, I am satisfied that it is fair and reasonable to fix costs of the motion, including costs submissions, at $1,500, inclusive of disbursements and HST. Costs to be payable within 90 days.
Released: November 1, 2012
Signed: "Justice D. DiGiuseppe"