Ontario Court of Justice
at
7755 Hurontario Street, Brampton, Ontario
Endorsement
Justice L.S. Parent
(Court office address)
Date
Applicant:
Shawn Richard Woods
Present
February 11, 2019
Counsel:
Geoffrey Wells
Present
Duty Counsel: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Present
Respondent:
Nicole Samantha Shaw
Present
Counsel:
Karen Cunningham
Present
Duty Counsel: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Present
Order to go in accordance with minutes of settlement or consent filed.
COST ENDORSEMENT
Overview
1On November 26th, 2018, I released my decision following the hearing, on October 23rd, 2018, of a motion brought by Mr. Woods for unsupervised and increased access to his children.
2The parties were invited to provide written submissions on costs for this motion and the case conference held on August 16th, 2018, if they were unable to resolve the issue.
3Counsel, on behalf of Mr. Woods, provided his submissions and counsel for Ms. Shaw responded. A reply was also received on behalf of Mr. Woods.
4All costs submissions were received within the timetable ordered in my reasons for judgment dated November 26th, 2018.
5Counsel on behalf of Mr. Woods seeks an order granting costs in the amount of $15,000.00, inclusive of disbursements and HST.
6Counsel on behalf of Ms. Shaw opposes the request for costs submitted on behalf of Mr. Woods. Counsel submits that each party should bear their own costs or in the alternative, that costs be reserved to the trial judge.
Legislative Framework
7Costs in family law matters are governed by Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43 and Rule 24 of the Family Law Rules, O. Reg. 114/99. These sections clearly establish that the determination of costs in family law proceedings is within the discretion of the court.
8Under Rule 24 (1) of the FLR, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
9Under Rule 18 (14) and (16) of the FLR, offers to settle are to be considered in the determination of costs. Specifically, these subrules require the court to review and consider offers to settle in light of the exercise in discretion regarding the amount, the level and when any award is to be satisfied.
10Rule 24 (5) states that 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.
11Rule 24 (12) states that, in determining the issue of costs, the court shall consider the following factors:
(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 fess, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) Any other relevant matter.
12Submissions filed on behalf of both parties reference this framework in advancing their positions regarding costs.
Analysis
13Modern costs rules are designed to foster four fundamental purposes:
(1) to partially indemnify successful litigants;
(2) to encourage settlement;
(3) to discourage and sanction inappropriate behaviour by litigants; and
(4) to ensure that cases are dealt with justly under subrule 2 (2) of the FLR.
See: Mattina v. Mattina, 2018 ONCA 867
Rule 24(1) – Successful Party and Rule 18 – Offers to Settle
14In Berta v. Berta, 2016 ONCA 918, the Court of Appeal stated at para. 94:
A successful party in a family law case is presumptively entitled to costs. An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M.(A.C.), at paras. 40-43.
15To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (SCJ).
16Counsel for Mr. Woods references two offers to settle in his submissions. These offers are dated July 10th, 2018 and August 17th, 2018. Copies of these offers have been included in the submissions filed on behalf of Mr. Woods.
17Counsel for Ms. Shaw attached three offers to settle in her submissions. These offers are dated September 26th, 2018, October 15th, 2018 and October 22nd, 2018.
18There is no dispute that the offers submitted by both counsel satisfy the criteria of Rule 18 so as to be considered offers to settle within the rule.
19Submissions filed on behalf of Mr. Woods acknowledges that the offers do not trigger the cost consequences as outlined in Rule 18(14) FLR. Submissions filed on behalf of Ms. Shaw did not reference these settlement offers.
20However, the court, in accordance with Rule 18(16), can take into account any written offer to settle, the date it was made and its terms, even if subrule 18(14) does not apply, when exercising its discretion over costs. It is on this basis that counsel for Mr. Woods references the offers to settle as well as correspondence dated June 25th, 2018.
See: C.A.M. v. D.M., [2003] 18880 (ON CA)
21Counsel for Ms. Shaw submits that success was divided between the parties. Counsel submits that Ms. Shaw was successful on the issues of frequency of mid-week visits, the commencement date of unsupervised visits, Christmas access, access exchange location and communication method to be used by the parties.
22After a review of the submissions and the motion materials, I find that Mr. Woods was the more successful party and therefore he is entitled to rely on the presumption in Rule 24(1) FLR.
23Although Mr. Woods was not successful to the extent that the order requested in his Notice of Motion was not granted, I find that he was successful on the key issue before the court, namely the commencement of unsupervised visits with his children.
24As stated by Pazaratz, J. at paragraph 66 of his decision in Jackson v. Mayerle, 2016 ONSC 1556, “Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine.”
Rule 24(12) Factors
25Rule 24 FLR requires the court to determine costs through the lens of “reasonableness and proportionality”. This mandatory approach requires the court to consider the primary objective of Rule 2(2) FLR, namely that cases are dealt with justly.
See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.); Lawrence v. Lawrence, 2017 ONCJ 431; and Beaver v. Hill, 2018 ONCA 840.
26In ensuring that matters before the court are dealt with justly, the court is required to assess costs recognizing that family law proceedings and any costs flowing from these proceedings, as determined in accordance with the Family Law Rules, are to “…embody a philosophy peculiar to a lawsuit that involves a family.”
See: Frick v. Frick, 2016 ONCA 799, at para. 11.
27Although access to justice is a right, court proceedings are not intended to give litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and ignorant to the costs of the litigation process.
See: Lawrence, at para. 54.
28In Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), the Ontario Court of Appeal indicated that a costs award should be a "fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant.”
29Measures of a "fair and reasonable amount" include:
(a) that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9; and/or
(b) by looking at what the unsuccessful party paid for their own legal fees. See: Goryn v. Neisner, 2015 CarswellOnt 8562, and Mohr v. Sweeney, 2016 ONSC 3238
30Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher; and Lawrence, at para. 64; Delellis v. Delellis and Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345.
31In Delellis, Aston J. wrote at para. 9:
However, recent cases under the Rules of Civil Procedure, R.R.O.1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs...Costs must be proportional to the amount in issue and the outcome. 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, rather than an amount fixed by the actual costs incurred by the successful litigant.
32In considering the factors under Rule 24(12), I make the following determinations:
a) Bad Faith/Unreasonableness
Although claimed by both parties, I do not find that either party behaved unreasonably and/or in bad faith. Opposing the request of the other party does not, in my view, automatically result in an unreasonable position.
The evidence presented before me did not support that an order be granted in accordance with Ms. Shaw’s request, or Mr. Woods’ request as presented in their respective notices of motions.
b) Rates and Time Spent
Mr. Woods’ counsel indicates that he was called in 2003 and that his hourly rate is $435.00. Counsel has submitted a Bill of Costs which indicates that he spent 33.00 hours on this matter for the period between June 5th, 2018 and October 23rd, 2018. The Bill of Costs also details 5.5 hours of work completed by a law clerk at the hourly rate of $190.00.
Ms. Shaw’s counsel indicates that she was called in 1996 and that her hourly rate is $425.00. Counsel has submitted a Bill of Costs which indicates that she spent 24.10 hours on this matter for the period between October 1st, 2018 and December 4th, 2018.
The Bill of Costs also details 15.10 hours of work completed by counsel with a year of call of 2017 at the hourly rate of $250.00; and 1.80 hours of work completed by two law clerks at the hourly rate of $125.00.
I find the hourly rate of each counsel to be reasonable given their years of experience. I further accept that hourly rate of the law clerks, as submitted, are reasonable given that both counsel billed this time and there is not a significant disparity in the hourly rates submitted.
A review of the Bill of Costs submitted on behalf of Mr. Woods details time spent that are outside of the scope of cost considerations for the case conference held on August 16th, 2018 and the motion held on October 23rd, 2018. Specifically the time docketed prior to these events, I find, are not to be determined at this point.
Further, I do not find that, given Mr. Woods’ counsel’s level of experience and the limited issues before the court, the 21.0 hours submitted, which include time spent by counsel and his law clerk, are reasonable and proportionate.
I make the same finding, given Ms. Shaw’s counsel’s level of experience, regarding her 28.70 hours submitted.
c) Offers to Settle
The Family Law Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded, although there is no obligation to make an offer to settle.
See: Beaver v. Hill, 2018 ONCA 840.
I have therefore reviewed all offers exchanged between the parties and have taken into consideration this factor in my determination of costs to be awarded.
d) Other Expenses
I find that the disbursements claimed on behalf of both parties are reasonable given the matter before the court. However, it is unclear from my review of the Bill of Costs submitted on behalf of Mr. Woods if the expenses claimed are limited to the case conference and the motion. I have therefore considered this in the exercise of my discretion.
e) Other Relevant Factors - Ability to Pay
The issue of ability to pay was raised on behalf of Ms. Shaw.
Counsel submits that her client’s financial circumstances coupled with the fact that she is supporting the parties’ children, do not permit her to pay costs as requested by Mr. Woods.
I adopt the comments of Madam Justice Heather McGee in Mohr v. Sweeney, 2016 ONSC 3238, 2016, where she writes, "those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings."
However, I am also of the view that the financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18.
As stated by the Ontario Court of Appeal in C.A.M. v. D.M.:
Thus, 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 (QL) (S.C.J.), at para. 11. In fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child. [page195]
Order
33Taking into account all of the considerations noted above, including my determination that Mr. Woods was the more successful party as well as what is a reasonable amount for Ms. Shaw to pay, I order Ms. Shaw to pay to Mr. Woods the sum of $7,500.00, inclusive of disbursements and HST, by certified cheque or money order payable to “MacDonald & Partners, Barrister and Solicitor in trust”.
34These costs are fixed in relation to the motion heard on October 23rd, 2018.
35I do not find that costs should be ordered for the case conference on August 26th, 2018 given that this is a mandatory event under the FLR and a meaningful conference was held. Accordingly, I find that each party is to bear their own costs of the case conference.
36These costs ordered are to be satisfied as follows:
(a) A payment of $3,000.00 by March 15th, 2019; and
(b) A payment of $2,250.00 on April 15th, 2019 and May 15th, 2019;
37Counsel for Mr. Woods shall prepare this order for approval by counsel for Ms. Shaw.
38The matter will proceed as scheduled on April 18th, 2019 for a combined settlement/Trial Management conference at 10:00 a.m. in Courtroom #210 under the terms set out in my endorsement dated January 24th, 2019.
39I have requested that my judicial assistant forward this endorsement to counsel.
Justice L.S. Parent