Court Information

Ontario Court of Justice 7755 Hurontario Street, Brampton, Ontario

Date: November 8, 2018

Parties and Representation

Applicant: Nicole Colley Counsel: Ritika Kumar

Respondent: Jason Clements Counsel: Omarr Syed

Endorsement Regarding Costs

Introduction

1This is the decision in a request for costs made by Mr. Clements, the respondent, after a trial regarding his access to his daughter, Savanna.

2The applicant in this matter is Savanna's mother, Ms. Colley.

3Mr. Clements seeks costs on a partial indemnity basis in the amount of $8,976.38.

4Neither party exchanged official offers to settle.

5On Mr. Clements' behalf it is argued that he should be awarded costs as he was overall successful in obtaining unsupervised access and increased holiday access with his daughter contrary to the position taken by the applicant.

6In support of this, he indicates that the court's decision at trial mirrored that of the OCL and that the applicant, Ms. Colley, was unreasonable in her legal position causing him to incur significant legal fees which could have been avoided based on the party's behavior.

7On Ms. Colley's behalf, it is argued that there are other factors that should be considered by this court other than the presumption that a successful party is entitled to costs.

8Ms. Colley notes that neither party exchanged offers to settle and as well this court has the discretion to consider a person's ability to pay costs. In this regard it is pointed out that Ms. Colley is on social assistance and works part-time and that any cost award would affect her ability to care for Savanna.

9I note that both parties in their submissions raise issues regarding the other's behavior in relation to respecting and following up on earlier final orders.

1. Mr. Clements notes that Ms. Colley failed to bring Savanna to the first access visit following this court's final trial order without a proper doctor's note being provided.

2. Ms. Colley indicates that Mr. Clements has not updated his financial circumstances since the last order and that in all likelihood his child support payments should be much higher and retroactively paid.

10These are not relevant considerations for this court in deciding to award costs. It is however concerning to this court that such issues continue to linger. Both parties need to respect the orders that are currently in place and update the other regarding information as it pertains to their addresses, the child's information, as well as all financial information for the benefit of Savanna. The court expects the parties to do so and respect these court orders both in the spirit and the wording.

11When considering the outcome of the trial on the face of the result, Mr. Clements was the individual that was more successful in terms of the litigation perspective. I'm certain however that both parties understand that this court's decision did not focus on their needs but rather their daughter's overall best interests and the order was made in that regard.

12This court is acutely aware of rule 24(1) regarding the presumption that a successful party is entitled to costs, however the analysis does not end there.

13The court considered the following law dealing with costs in addition to what was provided by the parties.

Costs – General Principles

14Modern cost rules are designed to foster three fundamental purposes: In Quercia v. Francioni, [2011] O.J. No. 5208 at paras. 43-44 (S.C.J.), H.A. McGee J. cited the Court of Appeal holding in Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 para 8 (C.A.), that modern costs rules are designed to:

a) To indemnify successful litigants for the cost of litigation;

b) To promote and encourage settlement; and

c) To control behaviour by discouraging frivolous suits of defences that lack merit.

Fong v. Chan, [1999] O.J. No. 4600 (Ont. C.A.).

15Rule 2 – Sub Rule 2(2) of the Family Law Rules (the rules) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 of the rules.

16Sub Rule 2(4) of the rules states that a counsel has a positive obligation to help the court to promote the primary objective under the Family Law Rules. Clauses 2(3)(a) and (b) of the rules set out that dealing with a case justly includes ensuring that the procedure is fair to all parties and saving time and expense. Sambasivam v. Pulendrarajah, 2012 ONCJ 711.

Rule 18 Offers to Settle

17Rule 18(14) of the Family Law Rules reads as follows:

Consequences of failure to accept offer 18(14). A party who makes an offer is, unless the court orders otherwise, entitled to cost to the date the offer was served and full recovery of costs from the date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or hearing of a step other than a motion it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

18It is elementary that the onus of proving that an offer is one that is more favorable than the outcome of the trial results is on the person making the offer. Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842. In assessing whether an offer is more favorable or not, it is settled law that close is not good enough to attract the cost consequences of Rule 18(14). The offer must be as good as or more favorable than the trial results. Gurley v. Gurley, 2013 ONCJ 482.

19The court also must step back and exercise a judgment, having regard to all the circumstances as to what is a fair and reasonable amount to be paid by the unsuccessful party to the successful litigant rather than use an exact measure of the actual cost incurred by the successful litigant. Boucher v. Public Accounts Counsel for the Province of Ontario

20In Quercia v. Francioni, [2011] O.J. No. 5208, at paras. 43-44 (S.C.J.), H.A. McGee J. cited the Court Of Appeal's decision in Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 para 8 (C.A.), that modern costs rules are designed to amongst other things partially indemnify successful litigants for costs of litigation.

21Justice McGee stated that "the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. There is a component of reasonableness which must be considered when awarding costs. A cost award should reflect what the court views as a fair and reasonable amount."

22I have considered the above and Rule 24(11) which asked the court to consider the following:

a) The importance, complexity or difficulty of the issues;

b) The reasonableness or under reasonableness 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.

23The ability of a person to pay costs should not however override other factors as noted in rule 24(11) Peers v. Poupore, 2008, (Ont. Ct.).

24Generally the court is to consider the parties' limited financial circumstances not as a shield against any liability for costs but rather this is to be taken into account regarding the quantum of costs, particularly when their actions might not be considered entirely reasonable, Smith v. Smith paragraphs 7–13. In Takis v. Takis, [2003] O.J. No. 4059 (S.C.J.), the court found that the respondent's lack of income and assets, although a relevant consideration, could not be used as a shield in unnecessary litigation.

Quantum of Costs

25Determining the amount of costs is not a direct mathematical or mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher et al. v. Public Accounts Counsel for the Province of Ontario, [2004] O.J. No. 2634 (Ont. C.A.).

26The overriding principle is reasonableness. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case. Boucher et al. v Public Accounts Counsel for the Province of Ontario, [2004] Ont. C.A. supra.

27The court has broad discretion to award costs (Courts of Justice Act, s. 131(1)).

One's ability to pay is relevant to the issue of costs, particularly quantum of costs, Izyuk v. Bilousov, 2011 ONSC 7476. I have also considered the dictum in Boucher et al. v. Public Accounts Counsel for the Province of Ontario, [2004] O.J. No. 2634 (Ont. C.A.).

28The fixing of costs is not simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs is not to begin and end with the calculation of hours, times and rates. Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.

Discussion and Decision

29In the submissions on behalf of Mr. Clements in this argument for costs, I find that to some degree the use of the term unreasonable is in some degree suggesting that Ms. Colley was operating in bad faith or with some intention to inflict costs and delay matters.

30In my review of this file I find that Ms. Colley's litigation position was not one that was taken in bad faith. Her position in litigation was not supported in facts and to that extent might be unreasonable in the light of the evidence and the findings of this court. However, throughout the proceedings I do not believe she acted in such a way to knowingly and intentionally subvert the issue of access. See Bad Faith/ Unreasonableness S(C) v. S(M) (2007), 38 R.F.L. (6th) 315 (ONSC).

31I note that although there were difficulties in the interim orders and motions conducted that permitted unsupervised access, the parties did find a middle ground to permit access to continue somewhat semi-supervised. This is somewhat of a side issue to the results and conduct during the trial litigation but one that is considered by both parties when discussing the final results as no offers to settle were made and negotiations continued throughout leading up to the trial in terms of how access was to take place.

32I also note that a litigant's limited financial circumstances will not be a complete shield against any liability for costs but is to be taken into account regarding the quantum of costs, strictly when their actions can be considered unreasonable and they are the author of their own misfortune. See Smith and Takis supra – par 24 above.

33In this matter I find there was no objective action of bad faith or operating in such a matter that was a complete waste of litigation. I do believe that Ms. Colley held a belief that required a thorough review of the facts by an objective arbitrator being the court and a ruling that would assist in moving the matter forward. There were difficulties on both sides of the equation in terms of how the parties have been unable to communicate in a meaningful way. They created silos that needed to be broken down which to some extent has now occurred and it is hoped that the parties can move on from here.

34Where both parties litigate issues in good faith out of the genuine love for their child the results may be far from certain and no court costs are attracted to such actions. Reid v. Mulder, [2006] 29 RFL 120.

35In addition, I must consider the ability of the party to be able to pay a cost award McDonald v. Magal (2003), 67 O.R. (3rd) 181. In Murray, the court found that a cost award would have a devastating effect on a parent and it would likely destroy whatever chances that parent may have to achieve financial success and care for the child. The impact on a cost award on a child must be considered in these matters. Cassidy v. McNeil, 2010 ONCA 218.

36In this matter I have weighed the above factors. Although I find that Ms. Colley was honest in her belief, her litigation position should have adjusted over time given the work through the OCL and the facts in this case. She should have adjusted her reasonably held position which she did not causing some extra time and costs to resolve this matter.

37This I must balance with Ms. Colley's ability to pay and the above noted factors in how this cost award could impact Savanna.

38I note that the final child support order in this matter from May 18, 2016 does not deal with the issue of section 7 costs in any specific fashion and/or in a generic way.

39Savanna was born on December 29th, 2013. Up to this point in her life she might not have incurred any extracurricular activities or costs such as daycare, if I recall correctly from the evidence. This might not be the case on a go forward basis. In the future there could be, and in all likelihood will be, extracurricular activities and/or costs associated with high school and postsecondary studies.

40In relation to the issue of costs in this matter considering the above facts and law in the circumstances of the parties, I will award Mr. Clements $4,500.00.

Order

1. Ms. N. Colley shall pay $4,500.00 in legal costs to Mr. J. Clements which shall be a deferred payment as follows:

   a. This cost award of $4,500.00 total, will be deferred as a credit to Mr. Clements on a go forward future basis towards section 7 costs that may be incurred for Savanna. The following conditions or terms of using this credit will be imposed:

   i) This credit may only be used towards a mutually recognized section 7 cost(s) that is greater than $750.00 per section 7 activity/cost;

   ii) Mr. Clements may only apply this credit either once per year or session towards this section 7 cost and only up to $500.00 maximum may be applied towards his contribution to this section 7 costs.

41For example, if the parties agree that a trip that Savanna may take with her school costs $2,000.00, and the parties agreed to share this equally, for example 50/50, Mr. Clements may choose to apply a $500.00 credit towards his proportionate share of this section 7 cost and make up the difference of his proportionate share $500.00 in a direct payment to this costs as the parties agree to.

42Or if Savanna's 1st year college or university cost (tuition/books/residence/transportation and agreed-upon activities) after all government grants and any other contributions, costs for example net $15,000.00, and the parties' proportionate share is again considered for argument's sake 50% each, Mr. Clements may choose to apply a onetime $500.00 credit towards this 1st year tuition and pay the balance of his 50% share in this cost for this section 7 expense, being $7,000.00, as agreed to by the parties. In year 2 of Savanna's post-secondary education costs he may use a further $500.00 credit if he so chooses.

2. The applicant and the respondent are to exchange documentation pertaining to each agreed section 7 cost associated with an activity or program for Savanna that is greater than $750.00 in order to agree to these as section 7 expenses and to track the use of the above cost credit totalling $4,500.00.