Court File and Parties

Court File No.: FO-15-062 Date: February 8, 2017 Ontario Court of Justice

Between:

GARNET BJARNESON

• and -

DEMETRA KARAMBETSOS

Before: Justice Sarah Cleghorn

By way of: Written submissions, filed by December 22, 2016

Reasons for Judgment on Costs: Released Electronically on February 8, 2017

Counsel:

• Ms. Kirsi Ralko for the Applicant
• Mr. Terrence Douglas for the Respondent

Reasons for Judgment

Cleghorn J.:

Overview

[1] The trial was heard on October 11, 2016. The case raised two issues: the mother sought sole custody with the primary residence; while the father sought joint custody with a shared schedule. In written reasons, released on November 10, 2016, the Court ordered a joint shared custodial arrangement with child support to be paid in accordance with section 9 of the Federal Child Support Guidelines.

[2] The father seeks costs on a substantial indemnity basis from the date of an offer to settle that was served on April 6, 2016. The mother has acknowledged that the father is the successful party but asks that I use my discretion and find that this is an appropriate case for an order that no costs are payable.

Positions of the Parties

[3] The father's offer can be summed up as follows: the parties were to have joint custody with a shared residence, the holidays were to be equally divided and as a result of the parties' respective incomes there would be no child support payable by either party.

[4] The father's position is that he in fact achieved a result that was more favourable than his offer. In particular the offsetting of child support and the respective incomes of the parties requires the mother to pay a nominal amount of child support to the father.

[5] The mother does not challenge that the father was the successful party in the court proceeding. Rather, she asks that I exercise my discretion and not order costs against her. In support of her position, the mother advances three principal arguments: first, that the terms of the offer to settle by the father were not reasonable; second, that there were serious issues of domestic violence that impacted the ability of the parties to communicate, thereby forcing the matter toward litigation; and, lastly, that a cost award would result in financial hardship to her.

Cost Analysis

[6] The framework for assessing the appropriate cost award is found in Rule 24 of the Family Law Rules. This rule very clearly states that, "[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal."

[7] There is therefore a presumption that the father is entitled to costs, given that he was the successful party at trial.

[8] Rule 24(11) sets out the factors to be considered when assessing costs. Both parties have acknowledged in their written submissions that the matter was neither complex nor difficult in terms of the issues. It is trite to say that the issues of custody and parenting arrangements are significant to all litigants who find themselves at a trial asking a judge to make such an important decision impacting how their child is to be raised.

[9] I will next address the issue of the reasonableness (or lack thereof) with respect to the behaviour of each of the parties. While doing so I will address the mother's first two arguments as to why no cost award should be made (unreasonable terms of the father's offer to settle and the issue of domestic violence).

[10] On behalf of the mother, Mr. Douglas argues that the father's offer to settle was unreasonable. In that regard, he submits:

… that the Applicant's April 6, 2016 Offer to Settle was not reasonable given that its terms were the same as the Applicant's originating Application dated October 2, 2015, and as such the Respondent could not be expected to accept it as a bona fide intent to resolve the issues by simply reiterating the Applicant's original positions.

[11] An offer to settle should never be viewed as a starting point for something better. That type of mindset cannot be encouraged. It is the expectation that an offer to settle is a party's bottom line, meaning that if it is not agreeable to the other side then a trial will be necessary. While the door to resolution should never be closed, the practice of the parties putting forward their best offers to settle should be promoted. It should be encouraged in family proceedings to come to that point as soon as possible in the court process. Bearing this in mind, the belief of the mother that the father did not put forward a reasonable offer to settle was short sighted on her part and most unfortunate as the trial could have been avoided had she accepted it. It simply does not follow that because an offer to settle mirrors a party's position as outlined in their application that it is by definition unreasonable. The assessment of what is "reasonable" must be more nuanced than that. In this case, the father's position was reasonable from the outset and the mother's refusal to accede to it in the hopes of obtaining something better was not.

[12] I move next to the mother's second argument – that domestic violence marred this relationship and that the father's position in the litigation was a continuation of his efforts to control her. In my reasons for judgment I found (at paragraph 28), that the mother's belief in that regard was unsupported by the evidence and unreasonable. I concluded that the mother's motivation for not communicating with the father was to strengthen her position for sole custody. I am left, therefore, with no alternative but to find the mother was the driving force behind the litigation and therefore she acted unreasonably in all of the circumstances.

[13] Having found that the mother acted unreasonably I must now determine if the costs requested by the father reflect time properly spent on the matter by his counsel.

[14] Ms. Ralko has filed a bill of costs. The bill of costs does not breakdown the amount of time spent on each task. As a result, I am left to decide whether the total amount of time spent on preparing for the one-day trial and attendance at the trial is reasonable in all the circumstances. The amount claimed (inclusive of disbursements and HST) amounts to $5,465.36. I accept that this is a reasonable amount for the time involved from when the offer to settle was served until the conclusion of the trial.

[15] The father served an offer to settle that meets all of the criteria as set out in Rule 18(14), specifically the offer directly related to the proceedings before the Court, it was served within the required time, and it was not withdrawn prior to the start of the trial.

[16] This does not end the analysis, as I must also take into consideration that a cost award must be one that is reasonable in all circumstances.

[17] In doing so, I am mindful that there are three fundamental purposes of cost awards, as explained in Fong et al v. Chan et al:

1. to indemnify successful litigants for the cost of the litigation;
2. to encourage settlements; and
3. to discourage and sanction inappropriate behavior by litigants.

[18] Taking into account these various purposes to be served through the making of a costs award, I will now address the third argument put forward by the mother. It is her position that a cost award against her will occasion financial hardship for her and will impact the ability of the parties to communicate with one another.

[19] In support of this position Mr. Douglas submits that neither party is out of pocket as both were assisted by legal aid, therefore a cost award is not warranted. This argument can hold no weight in the analysis of a cost decision. It is contrary to the both the Family Law Rules and the case law. Costs play a significant role in deterring litigation and promoting resolution. It should be a factor that each and every litigant and potential litigant should continue to assess at every step in a family law proceeding. It can serve to have a litigant "check in" with the position that they chose to take at any given moment in a court proceeding. A trial should always be a last resort for parents to resolve such important issues such as custody and a parenting schedule; costs serve as reminder that positions taken in the litigation will potentially have financial consequences for the litigants. The fact that a party may be in receipt of legal aid has no bearing in the analysis as it defeats the very purpose of why costs are awarded and sets up a model where different rules apply to different litigants.

[20] In response to the mother's argument that a cost award against her will negatively impact the co-parenting relationship, I believe the comments I made at paragraph 32 of my reasons for judgment bear repeating:

Given the age of the child the mother must find a way to put her personal view of the father to the side and find an effective way to communicate with him… It is the mother who must find a way to communicate with the father in an effective manner for the best interests of their daughter.

[21] I have had the benefit of hearing from the mother concerning her living arrangements and financial circumstances; I do not accept that a cost award will cause financial hardship for her.

Decision

[22] The Rules concerning costs exist for a purpose: to encourage settlement, deter litigation, and to help ensure that parties to a proceeding make reasonable and rational decisions throughout the legal process.

[23] This is an appropriate case to apply Rule 18(14) and require costs payable by the mother to the father on a substantial indemnity basis from the date of the offer to settle of April 6, 2016.

[24] An order shall issue as follows:

1. Demetra Karambetsos shall pay costs to Garnet Bjarneson in the amount of $5,465.36 (inclusive of fees, disbursements and HST) to be paid in monthly installments of $250.00 per month commencing March 1, 2017 and thereafter on the 1st day of each month until the total amount is paid in full.

Released Electronically: February 8, 2017

Signed: "Justice Cleghorn"