Court File and Parties
Ontario Court of Justice
Between:
Andrew James Daw Applicant
— And —
Starlene Marie Joann Rosianna Respondent
Before: Justice B.C. Oldham
Heard on: August 9, 2018
Reasons for Costs Decision released on: October 5, 2018
Counsel
Ms. Andrea Clarke — counsel for the applicant (Father) Andrew James Daw
Mr. Mark Maurer — counsel for the respondent (Mother) Starlene Marie Joanne Rosianna
Decision
Introduction
1The only issue before me is costs in respect of the Applicant, Father's motion seeking to prevent the Respondent Mother from relocating with the child to Alberta. The motion did not proceed because the Mother withdrew her request to move. The parties could not agree on the issue of costs and made submissions before me on August 9, 2018 on this issue.
Background Facts
2The parties to these proceedings separated in October of 2010. They entered into a Separation Agreement dated February 24, 2011 (the "Agreement"). There is one child of their union; namely Carsen Andrew Daw, born on June 7, 2009 ("Carsen").
3The Mother has custody of Carsen in accordance with the Agreement. On November 24, 2017, the Mother gave the Father formal notice of her plans to move to Alberta at the end of August 2018. The Father responded by email dated February 14, 2018 indicating that he disagreed with the move and that he did not feel that it was in Carsen's best interest. He indicated that "A conversation on the subject probably will not settle anything as we have two different opinions. I will continue to take the time to figure out how to resolve this issue. No response is necessary to this email. Thanks."
4The Father then brought an Application seeking an order that required the mother to maintain Carsen's residence in Waterloo. This Application was commenced on March 23, 2018 with a first appearance date of May 17, 2018. The Father also brought a motion returnable on May 17, 2018 seeking the same relief.
5The motion was adjourned to June 6, 2018 so that the parties could obtain a Voice of the Child Report. Counsel for the Mother raised concerns about Ms Clarke's continued representation given that she also represented the father of Ms Rosianna's other child who was also affected by this planned move. The matter was then adjourned to a Case Conference on June 26, 2018 and finally set for hearing on August 9, 2018.
6When the Mother received the Voice of the Child Report on or about June 26, 2018, she decided that she would remain in Waterloo and would not relocate to Alberta. Counsel for the Mother wrote and advised the Father's counsel of this decision on June 26, 2018. He sought to vacate the motion date which was scheduled for August 9, 2018.
7Counsel could not agree on the terms of vacating the date and as a result the Mother's counsel was forced to bring a motion, returnable on August 2, 2018, seeking an order to vacate the date. On August 2, 2018, J. Neill made an order directing the parties to address the issue of costs on the August 9, 2018 return date.
Cost Submissions
8The Mother's counsel filed a bill of costs which reflect counsel's fees from June 26, 2018 to August 6, 2018. It is his position that his client is entitled to costs on a substantial indemnity basis on the basis that he was forced to bring a Motion to have the August 9, 2018 date vacated when his client was essentially acceding to the Father's motion. His bill of costs detail the time spent on the file by date and by time keeper which include the solicitor and his staff. The total costs sought on behalf of the Mother were $3,038.07, inclusive of disbursements and HST.
9The Father's counsel filed a bill of costs totalling $7,399.24 on a substantial indemnity basis. Her bill of costs is broken into three headings:
Commencement of These Proceedings, which include a general description and a global allocation of 8.7 hours totalling $2,784.00;
Case Conference held on May 2, 2018 for a total of 6.1 hours totalling $1,952.00; and
Settlement Conference held on June 6, 2018 for 5.8 hours totalling $1,812.00.
10In submissions, Ms Clarke confirmed that she was only seeking costs in the amount of $5,000.
Position of the Parties
11The Mother's position is that there should be no costs in respect of the Father's motion to prevent the Mother from moving to Alberta as neither party was successful on that motion. The Mother did not move and the Father did not have to proceed with his motion.
12The Father's position is that he had to retain and instruct counsel as a result of the Mother's notification to move and all of the time allocated to the "Commencement of These Proceedings" heading relates to the preparation of materials to address the Mother's decision to relocate. Counsel acknowledged that there may have been some time and research under this heading which was in respect of the claim that she should be removed from the record. This research is not set out, nor can I determine from the information on the bill of costs how much time would have been allocated to that research.
13In addition, the Father's counsel seeks costs for August 2, 2018 motion and attendance. Her bill of costs, however does not detail any time or expense that can be identified and allocated to that particular date or preparation for that attendance.
14The Mother's counsel claims that his client should be entitled to all of her costs for the preparation for and attendance at the hearing on August 2, 2018 given that the Father acted unreasonably. He was unreasonable in forcing her to bring a procedural motion to simply vacate a hearing date. His bill of costs is limited to the time spent since June 26, 2018 when he notified the Applicant of his client's position to abandon her request to relocate to Alberta and include costs up to and including August 6, 2018, following the August 2, 2018 attendance.
Law and Analysis
15The Court of Appeal in Serra v. Serra 2009 ONCA 395 confirmed that family law cost rules are designed to foster three important principles:
to partially indemnify successful litigants;
to encourage settlement; and
to discourage and sanction inappropriate behavior by litigants.
16Rule 18(14) of the Family Law Rules ("FLR") reads as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER —
(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.
17Rule 24 of the FLR sets out the framework for cost orders in Family Law cases. Specifically, Rule 24(1) is the presumptive rule – the presumption is that the successful party will be entitled to their costs.
18Rule 24(4) deals with successful parties who have acted unreasonably and provides that:
"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".
Rule 24(5) Decisions on Reasonableness — In deciding whether a party has behaved reasonably or unreasonably the court shall examine,
(a) the parties 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 other party withdrew or failed to accept.
19Rule 24(6) addresses cases where success is divided.
Rule 24(6) Divided Success — If success in a step in a case is divided, the court may apportion costs as appropriate.
20Rule 24(8) deals with cases where a party has acted in bad faith and provides as follows:
Bad Faith — 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.
21Rules 24(10), (11) and (12) and (12.1) address the orders, timing and factors to be considered by the court in making a decision in respect of costs. Specifically, the Rules state:
(10) Deciding Costs — Promptly after dealing with a step in the case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later stage in the case.
(11) Same — The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case.
22Rule 24(12), states:
(12) Factors in Costs — 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 expert witness fees, including the number of experts and their rates;
(vi) any other expenses properly paid or payable; and
(vii) any other relevant matter.
(12.1) Supporting Materials — Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court.
23The Court of Appeal in Boucher v. Public Accountants confirmed that "while it is appropriate to do the costs grid calculation, it is also necessary to step back and consider the result produced and question whether, in all of the circumstances, the result is fair and reasonable."
24As noted by Justice Quinn in Riss v. Greenough:
"[23] The Family Law Rules do not use the terms, solicitor-and-client, party-and-party, partial indemnity or substantial indemnity. They mention costs being awarded on 'a full recovery basis' where a party has acted in bad faith: see rule 24(8). 'Full recovery' is also available under rule 18(14) where, in respect of a motion or trial, a party equals or betters his or her offer to settle. Beyond that, no other 'scale' of costs seems to be mentioned. The result is that, after considering the factors set out in rule 24(11), the court may award costs anywhere from nominal to full recovery. This rule permits a wide discretion as to the scale or level of recovery."
25There are no formal offers to settle which meet the requirements of the Rules in this case.
26There is no question that the preferred approach in this case would have been for the parties to have some early discussions and avoid the cost of litigation. That said, the request by the Mother to move from Ontario to Alberta was significant. She prepared comprehensive materials setting out her reasons, her employment opportunities and her plans. What could not be fully assessed was the impact on the child and the Voice of the Child Report was very instructive and resulted in the Mother withdrawing her request. This was not a frivolous ill-considered plan and she acted reasonably.
27The Father was put to the cost of bringing the Application to prevent the move. However, there is no evidence that he attempted resolution discussions before moving forward. Again, I would not be too critical as the move would have a significant impact on his relationship with the child and likely needed to be addressed by the courts given the parties' early positions.
28The court does have jurisdiction to award costs where claim is withdrawn. Technically, the Mother did not withdraw her claim as she was the Applicant; however, it was her request to relocate which prompted the Father to commence the Application. Accordingly, the situation is somewhat synonymous and the comments by Justice O'Connell in Davis v. Fell [2016] ONCJ 84 at para 74 are instructive:
74Consideration of success is the starting point in determining costs. However, any attempt to determine a "winner" or "loser" in a settlement is, in most cases, complex if not impossible. Cases are resolved in whole or in part for many reasons. See Sims-Howarth v. Bilcliffe, 2000 CarswellOnt 299 (S.C.J.), para. 1. Thus, for good reason, judges are reluctant to make an order as to costs when the parties settle the merits to their dispute. Where parties make a settlement as between themselves, the court should be very slow to make an award of costs against one of the parties. Unless there are compelling reasons to do so, costs in the circumstances of the settlement between parties ought not to be awarded by the court. See: Page v. Desabrais, supra, para. 28; Blank v. Micallef, 2009 CarswellOnt 6790, para. 11; Gurzi v. Elliot, 2011 CarswellOnt 2169 (O.C.J.) para. 16.
29Given the importance of the issues and the ultimate outcome, I do not think it is appropriate to make an order for costs against either party in respect of the motion.
30With respect to the August 2, 2018 motion to vacate the August 9, 2018 hearing date, I would agree that there may have been a better way to deal with this issue. That said, the parties did not agree on the issue of costs and accordingly that issue had to be scheduled and argued. That was the outcome of the August 2, 2018 attendance – time was set aside to argue the issues of costs.
31Given my decision in respect of the costs on the settlement of the merits of the motion, I would not order costs for the August 2 or August 9, 2018 attendances.
32It is unfortunate that the parties could not agree on this final issue. Lengthy materials were filed and a significant amount of time was spent in argument. Both parties were represented and both have incurred costs. In these circumstance, it is appropriate and consistent with the principles of cost orders identified by the Court of Appeal in Serra, that there be no order as to costs.
Released: October 5, 2018
Signed: Justice B.C. Oldham