Court File and Parties

CITATION: Barker v. Barker, 2017 ONSC 36

DIVISIONAL COURT FILE NO.: 501/16

DATE: 20170104

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Tom Barker, Applicant

AND:

marie barker, Respondent

BEFORE: Kiteley J.

COUNSEL: Elliot Birnboim, for the Applicant

Martha McCarthy, for the Respondent

HEARD at Toronto: January 3, 2017 in writing

ENDORSEMENT ON MOTION FOR LEAVE TO APPEAL

Introduction

[1] In his reasons for decision dealing with the merits of the motion[^1] Hood J. dismissed the Applicant’s motion for an order that the child live in the United Kingdom with him and he granted the Respondent’s motion for temporary custody and he ordered the Applicant to pay child and spousal support.

[2] Tom Barker seeks leave to appeal from the order Hood J. made on October 4, 2016 in which he ordered the Applicant to pay costs in the amount of $30,000 to the Respondent. In that endorsement Hood J. held as follows:

I am not prepared to accept the argument of Tom that because this was a child-related motion there should not be any costs awarded absent a finding of bad faith.

A successful party in a family law case is presumptively entitled to costs. An award of costs is subject to the factors listed in R 24(11) and the other provisions of R 24, including unreasonable conduct and bad faith. The court is also to consider offers made and reasonableness of the costs sought.

Costs should generally approach full recovery so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result (see Berta v. Berta, 2016 ONCA 918 at para 92-94). The court also has to consider what is fair and reasonable having regard to what the losing party could have expected the costs to be.

There was no unreasonable conduct by Marie which would disentitle her to costs. The main issue to be decided, namely where Scarlet was to live, was a very important issue for both parties. It took the majority of the time on the motion.

I am not prepared to find that either party acted in bad faith. Nor am I relying upon the offer made and undertaking an analysis of whether the offer was matched or not. Based upon Berta the court is to start from full recovery.

Tom takes no issue in his submissions with the amount sought. It would be difficult for him to do so as he did not provide his own Bill of Costs with a breakdown of the costs incurred by him or the hourly rate of his own counsel. I suspect this is because his own counsel’s rate is comparable. Despite this I still have to arrive at a number that is proportional and fair in all of the circumstances.

The hourly rates sought are appropriate. I also find the disbursements to be appropriate. I find the time spent to be excessive especially the time spent by junior counsel. Much of the affidavit material was already prepared for earlier motions and no order was made in respect thereto.

Taking all of the above into consideration I fix the costs inclusive of HST and disbursements in the amount of $30,000. The costs are to be paid by the applicant to the respondent on or before November 7, 2016.

Analysis

[3] In his factum, counsel for the Applicant relies on both branches of rule 62.02(4), namely that the moving party must establish that

(a) there is a conflicting decision of another judge or court in Ontario or elsewhere and that it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there is reason to doubt the correctness of the order and that the proposed appeal involves matters of such importance that leave to appeal should be granted.

[4] Counsel argues that there is conflicting case law on two areas: the import of children’s issues to the amount of the cost award and the concept that costs should generally approach full indemnity.

[5] I agree with counsel for the Respondent that the cases such as Ligate v. Richardson[^2] to the effect that costs ought not to be awarded where the focus is on child-related issues have been overtaken by the interpretation by the Superior Court and the Court of Appeal that rule 24 creates a presumption in favour of costs to the successful party in all matrimonial litigation including parenting issues.[^3] Furthermore, the concept that costs should generally approach full indemnity has been endorsed by the Court of Appeal.[^4] Counsel for the Applicant has not identified any conflicting decisions in the context of cases which reflect a conflict in a matter of principle.[^5]

[6] In any event, counsel for the Applicant has made no submissions that it is “desirable that leave to appeal be granted”. At paragraph 45 of his factum, counsel submits that the conflicting case law (which I have not accepted) “would be in the public interest to address”. That is not the second part of the conjunctive test. The Applicant has failed to meet both aspects of the test in rule 62.02(4)(a).

[7] Counsel for the Applicant makes the submission that there is reason to doubt the correctness of the decision primarily because the motions judge did not consider the offer to settle of the Respondent. He relies on the decision in Lawson v Lawson[^6] for the proposition that “it is well-settled that the first step in determining whether or not a party is “successful” is considering any Offers to Settle that were made”. At paragraph 7 of Lawson, J.W. Scott J. wrote that “it is clear that simply because an order is made on an issue that appears to be in favour of a party, to determine whether that party has been “successful” the court must take into account how that order compares to any settlement offers made”. However, in the balance of the decision it is apparent that the court looked at other factors in determining “success” in a proceeding that had resulted in a retrial before her with all of the complications in establishing costs that that caused. I do not accept the submission that “it is well-settled that the first step in determining success is a consideration of the offers”. “Success” is not defined in the Family Law Rules but it cannot be defined by a comparison of the offers, if only because offers are not made in all cases, in which case there would be no context in which to decide “success”.

[8] In this case, the key issue was the parent with whom the child lived which would dictate the country in which she lived. Success on that issue was clear.

[9] Pursuant to rule 24, the concept of “reasonableness” is introduced in rule 24(4) and (5). Pursuant to rule 24(4) a successful party who has behaved unreasonably may be deprived of costs and in rule 24(5), the court is required to examine reasonableness or unreasonableness based on several factors including whether the party made an offer, the “reasonableness” of any offer the party made or whether the party withdrew or failed to accept an offer. As Hood J. indicated, the main issue was custody. The Respondent achieved an outcome which was consistent with her offer. The fact that she did not recover amounts equal to or greater than her non-severable offer on child support and spousal support did not factor into his analysis when custody was the main issue that took the majority of the time on the motion.

[10] With respect to the second aspect of the test pursuant to rule 62.02(4)(b), counsel for the Applicant took the position that “it is of general importance to revisit and correct this analysis regarding “success” particularly if the court were to affirm the principle in Berta v. Berta that the “successful” party is presumed entitled to costs at a level approaching full indemnity.” Furthermore, he argues that the development of a precedent permitting the court to order full-indemnity costs without any analysis of offers to settle would reduce parties’ incentive to make such offers and, by extension, reduce their chances of settlement.

[11] It goes without saying that the Superior Court affirms the principle established by the Court of Appeal in Berta. The absence of analysis of the Respondent’s offer to settle is related to the facts of this case. Furthermore, the argument does not lie in this case where the Applicant made no offers to settle. The Applicant has failed to meet both aspects of the test in rule 62.02(4)(b).

Costs of the motion for leave to appeal

[12] The Respondent was successful in the motion for leave to appeal and is therefore entitled to costs. Counsel for the Respondent provided written submissions in which she asked for costs of the motion for leave to appeal in the amount of $5305.35. I did not receive written submissions as to costs of the Applicant and consequently, as was the case before Hood J., I have no comparison as to the costs that the Applicant would have sought. The time spent was primarily by associates called in 2010 (6 hours) and in 2015 (10.60 hours) with senior counsel involved only for 1.2 hours. It appears that there was likely some duplication between the associates that would have increased the costs for a straightforward motion for leave and I reduce those costs somewhat.

ORDER TO GO AS FOLLOWS:

[13] Motion by Applicant for leave to appeal order of Hood J. dated October 4, 2016 is dismissed.

[14] Applicant shall pay to the Respondent costs in the amount of $3500, inclusive of disbursements and HST, payable by February 4, 2017.

[15] By January 12, 2017, Applicant shall pay to the Respondent the costs ordered by Hood J.

Kiteley J.

Date: January 2017

[^1]: 2016 ONSC 5310 [^2]: 1997 CarswellOnt 2185 (ONCA) [^3]: Biant v. Sagoo 2001 CarswellOnt 3315, [2001] O.J. No. 3693 (SCJ.) [^4]: For example: Berta v. Berta 2015 ONCA 918 [^5]: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Ont. Div. Ct.) [^6]: 2008 CarswellOnt 2819, [2008] O.J. No. 1978