Court File and Parties
Court File No.: 306/14 Date: 2015-05-14
Ontario Court of Justice
Re: Jason Clifford James Grindley – Applicant And: Julie Copithorne – Respondent
Before: Justice S. O'Connell
Counsel: Susan Berry, for the Applicant Brian Burke, for the Respondent
Costs Endorsement
Introduction
1Mr. Grindley seeks his costs of the motion in this matter on a substantial indemnity or full recovery basis in the amount of $15,642.36, including disbursements.
2Mr. Grindley served his costs submissions, including a bill of costs shortly after I released my decision, and Ms Copithorne served her reply costs submissions immediately thereafter.
The Law and Governing Principles
3Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99, govern the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(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.
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
4Rule 24(11) provides a further list of factors that a court must consider when setting the amount of costs:
(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.
5Rule 18(14) and 18(16) of the Family Law Rules, which address the cost consequences of offers to settle, provide the following:
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.
18(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
6In Serra v. Serra, 2009 ONCA 395, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
(1) to partially indemnify successful litigants for the cost of litigation;
(2) to encourage settlement; and
(3) to discourage and sanction inappropriate behaviour by litigants.
7Rule 24 created a new framework for determining costs in family law proceedings. The presumptive nature of Rule 24 has significantly curtailed the court's discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in C.A.M. v. D.M. held that while the Rules have not completely removed a judge's discretion, the rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs. Courts must not only decide liability for costs, but also the amount of those costs.
8The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.
9Finally, in deciding the amount of costs to be paid, I must also consider clause 24(11)(f) which requires the court to consider any other relevant matter, including the ability to pay costs. See Biant v. Sagoo. In C.A.M v. D.P., Justice Rosenberg for the Ontario Court of Appeal states the following:
…while subrule 24(11) enumerates a number of factors that must be taken into account, the person setting the amount of the costs is directed to take into account "any other relevant matter". I agree with Aston J. in Sims-Howarth at para. 4, that the "Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs". In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (S.C.J.) at para. 11 [Emphasis added.]
Analysis
10In my view, Mr. Grindley was entirely successful on the motion for unsupervised access. I do not agree that success was divided. However, Mr. Grindley is not entitled to full recovery of costs. For reasons unknown to the court, Mr. Grindley did not serve an offer to settle.
11I agree with the respondent's submission that the failure to serve an offer to settle is an important factor that I should take into consideration on assessing costs, particularly given the requirements of Rule 18 of the Family Law Rules and the overall objectives and Rule 24(5) of the Family Law Rules, which provides that the failure to make an offer to settle is a factor that the court must consider in determining whether a party acted reasonably.
12Justice Stanley Sherr states the following in J.V.M. v. F.D.P., 2011 ONCJ 616, and I adopt this reasoning in assessing the costs in these proceedings:
…The failure to make an offer to settle much earlier by either party is unreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (subrule 2(2)). This includes taking appropriate steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an offer to settle will be an adverse factor when assessing costs.
13Having said that, there should still be costs awarded in this matter. In my view, Ms. Copithorne's position on the motion was unreasonable, and some of the costs incurred in this matter were a result of unnecessary litigation tactics. It is hoped that the parties will be able to resolve the outstanding issues in a child-focused manner once Dr. Butkowsky's assessment has been completed.
14Having considered all of the circumstances in this case including the bill of costs, the factors to be considered when deciding the quantum of costs under Rule 24(11), and in particular, the importance of this issue to both parties and the substantial amount of evidence and materials to be reviewed and prepared, Mr. Grindley should be entitled to his costs of the motion in the amount of $7,500.00, inclusive of taxes and disbursements.
Order
- There will be an order for costs payable by Ms Copithorne to Mr. Grindley in the amount of $7,500.00, inclusive of taxes and disbursements, payable no later than 90 days from the day of this order.
S. O'Connell
Date: May 14, 2015