Court File and Parties
Court File No.: Halton 70/09 Date: 2015-11-24 Ontario Court of Justice
Between: Carole Helen Courville, Applicant
— AND —
Darren Richard Courville, Respondent
Before: Justice V. Starr
Submissions made in writing only
Reasons for Decision on Costs of Motions released on November 24, 2015
Counsel: Geoffrey Carpenter — counsel for the applicant Catherine Haber — counsel for the respondent
VICTORIA STARR J.:
INTRODUCTION
[1] This is the Court's decision and reasons with respect to costs of three motions: one heard on July 10, 2015 and two heard on August 31, 2015.
OVERVIEW
Background and the Nature of the Case
[2] The party's son, Colin, has resided primarily with his mother and enjoyed alternating weekend and holiday access with his father. This parenting arrangement was one agreed upon by the parties and is set out in their separation agreement dated July 3, 2007.
[3] The father brought a motion to change Colin's primary residence to his home, claiming, among other things, that Colin wishes this change.
[4] The mother's position in the cause is that the father has engaged in parental alienation conduct. The father disagrees. His position in the cause is that the child is justifiably estranged from the mother, wishes to reside primarily with him and to have access to his mother on alternating weekends. Both parties have filed expert reports (including an assessment and a critique of the assessment) in support of their respective positions.
[5] On March 25, 2015, the parties agreed, and on that basis this court ordered, that contact between Colin and his father would be suspended for 90 days. As a result of a further order made on July 10, 2015, the no contact order was extended beyond the initial 90 days agreed upon. The no contact order was terminated and the status quo which existed prior to its imposition was restored by order of this court dated September 3, 2015. The court's decision and reasons are set out in Courville v. Courville 2015 CarswellOnt 14950.
[6] This matter is scheduled to proceed to trial the week of January 13, 2016.
The July 10, 2015 Motion
[7] The father was represented by a different lawyer than Ms. Haber prior to and at the time when this motion was heard.
[8] As I noted in my oral reasons of July 10, 2015, the intention of the parties when they agreed to the 90 day suspension of the father's access, was that the issue of whether it should come to an end or be extended would be decided at a motion that was to be heard immediately following the 90 day period. The date set for the motion (June 26, 2015) was selected so that the motion could be heard before the father's next regularly scheduled access visit following the 90 day suspension took place.
[9] The June date was subsequently changed to July 10, 2015 due to delay in the start of the 90 day period.
[10] I have, in an effort to reach a fair and just decision with respect to costs of this motion re-read the evidence filed for use at the July 10, 2015 hearing: The affidavit of Katie Best sworn July 8, 2015 and the correspondence between counsel attached as exhibits, and, the affidavit of the father sworn July 9, 2015.
[11] Based on this review, I have made certain factual findings with respect to what transpired and the representations made. These are set out below:
[12] The parties agreed upon a timeline to handle the July 10, 2015 date and to ensure that they would be ready to proceed on that date with either a motion or settlement conference. For example: a decision about whether the date would be used for motion or settlement conference was to be decided by both counsel by June 23, 2015, and, in the event that a motion would be proceeding that day, motion materials would be filed by the mother by June 30, 2015, responding materials from the father by July 7, 2015, and any replies by July 9, 2015.
[13] A decision about whether the July 10, 2015 date would be used for a motion or settlement conference was not decided by both counsel as per their timeline - by June 23, 2015. It is not clear to me why. There was an exchange of communication on June 24, 2015 regarding the upcoming court date. On that date the mother, through her counsel, made her position and intention very clear to the father: if he would not agree to continue the no contact order, she intended to proceed with the hearing of the motion on July 10, 2015. She did this twice that day. The following excerpt from her counsel's email sent at 1:17 PM. illustrates the first of the two communications:
E-mail sent at 1:17 PM: With respect to whether the next court date ought to be a motion or a conference, I feel I need to be more clear: My client will not accept any resolution other than the adoption of Jacqui's parenting plan recommendations in their entirety. If your client will not consent to this then the date will need to be a motion.
[14] Counsel for the father responded to the foregoing, in an e-mail he sent at 1:39 PM. Here he makes it clear that his client will not agree to interim access in accordance with the entire recommendations. He then goes on to imply (by tying together his comments about: adjourning the date for a settlement conference; his reference to the issue of access being decided at a settlement conference; the mother's likely success at a motion; and, his client's position on access, that the father is agreeable to his access remaining suspended until the settlement conference. For example, consider the following excerpt from that e-mail:
E-mail sent at 1:39 PM: The only thing that could be the subject of a motion would be interim access, and also the level of detail required by the supplemental follow-up reports. Both of these things can be decided at a settlement conference, so why bother with a motion? Carole cannot get Darren's interim access suspended indefinitely with an all or nothing approach like you are suggesting. You are trying to leverage Darren to accept the entire report by holding his interim access hostage? That is inappropriate.
[15] Counsel for the mother, in an effort to make sure that the father understood his client's position sent the second email. This was sent at 2:18 that day. In that e-mail he reiterates the mother's position:
E-mail sent at 2:18 PM: My client will not consent to the resumption of access in any manner other than one consistent with the entirety of the Report. If your client does not agree to that then she does not consent to access resuming. If your client then wants access to resume, we will need to have a motion.
[16] In communications to the father's counsel dated June 26, 2015, the mother's counsel followed up on his earlier e-mail. He sent another e-mail wherein he sought confirmation of the father's position. In that communication her counsel clearly states: "Please advise if there is going to have to be a motion? I need to know today so I can prepare materials if need be."
[17] The father's counsel responded on June 27, 2015 that he would provide an answer on Monday (June 29, 2015). On June 29, 2015, he wrote indicating that he wished to adjourn the July 10 appearance to the next available date. He added "I have no intention of doing a motion on July 10." In that communication, the father's counsel did not address the issue of his client's position with respect to the continuation of the suspension of his access during the further anticipated period of the adjournment.
[18] The mother understood this to mean that the father was agreeing to the continuation of the no contact order. As a result, she conducted herself as if the July 10, 2015 date would be adjourned and the no contact order extended during the period of the adjournment.
[19] On July 7, 2015 (3 days before the July 10, 2015 court date and too late for mother to properly prepare for a motion on interim access), the father's counsel sent the mother's counsel an e-mail wherein he indicated that he did not understand why the mother's counsel assumed access would continue to be suspended. The father's delay in making his position clear on the issue of the resumption of access earlier and the last minute timing of this written confirmation of his expectation going forward, did not leave the mother with sufficient notice or time within which to prepare, serve, and file materials for use on July 10, 2015.
[20] Given her position on the resumption of access, her lack of preparedness to argue a motion on July 10, 2015, and the expiration of the 90 day no contact order on or before July 10, 2015, the mother brought an urgent motion returnable on July 10, 2015. That motion was for an order adjourning the July 10, 2015, court date to a later date to allow her time to bring her motion, and as well, for the no contact provisions to continue pending the return date.
[21] The mother was successful on the motion heard July 10, 2015. A new date, August 31, 2015, was set for the hearing of her motion. As the father intended to bring a motion of his own, the date for the hearing of his motion was also set for August 31, 2015.
[22] The issue of costs of the July 10, 2015 motion was reserved to be dealt with when the issue of costs of the pending motions was dealt with.
The Two Motions Heard on August 31, 2015
[23] Both parties brought motions to change custody and access pending trial. These motions were heard on August 31, 2015.
[24] The mother's motion was for a change to the father's access and requiring the parties and the child to participate in family counseling, pending trial, with a condition that the first counseling appointment be scheduled before the father exercises any further access to their son.
[25] The father's cross-motion was to change the primary residence of the parties' son from the mother to him and for an order granting the mother specified access.
[26] The issue decided on these motions was whether there were compelling reasons necessitating an immediate change to the status quo, pending trial. In the result this Court found that there were not and in the result dismissed both parents' motions.
[27] The court ordered that submissions with respect to costs, in the event that either party advised he or she is seeking costs, were to be made at the trial management conference. At the trial management conference, the court ordered that costs submissions be made in writing.
THE POSITIONS ON COSTS
[28] Both parties claim their costs of the motions and each provided the court with written submissions. In this regard, the court reviewed: the mother's submissions dated November 9, 2015, the father's submissions dated November 9, 2015, the mother's reply submissions dated November 16, 2015, and the father's reply submissions dated November 16, 2015.
[29] The mother seeks costs on a full recovery basis in the amount of $17,890.68 on the basis that: she was successful on July 10, 2015 and in regards to that motion the father acted in bad faith; she was successful on August 31, 2015 on the major issue argued at the motion as her last offer to settle mirrored the result on the major issue and as compared to the father's offer to settle; and, the father's behavior during the motion was entirely unreasonable.
[30] The father's costs were $47,119.29 inclusive of HST and disbursements. He takes the position that the issue of costs of all three motions ought to be reserved to the trial judge. From his perspective, the dominant issue at the motions was whether the father had engaged in parental alienation conduct or whether the mother herself was responsible for her strained relationship with their son. This court made no such determination on the motion. As these factual determinations could have a significant impact on the costs ruling and will be decided at trial, it would be in equitable to decide the issue of costs prior to the trial.
[31] Second, the "reasonableness" of the mother's position at the motion can only be fully determined after all of the evidence at trial has been heard.
[32] Third, only after the trial can the court fully determine the relative "merits" of each party's position with respect to parental alienation which was the underlying issue at the motions.
[33] Finally, the father submits, the mother is not entitled to costs. She was not successful at the motion as her motion was dismissed.
THE LAW AND GOVERNING PRINCIPLES
[34] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and this case in particular.
[35] The subrules relevant to the circumstances of this case are as follows:
24.(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(4) 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.
(5) 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.
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(8) 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.
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
[36] Rule 24 (11) provides a further list of factors that a court must consider when setting the amount of costs:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness 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. O. Reg. 114/99, r. 24 (11).
[37] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 CarswellOnt 2475 (Ont. C.A.), at paragraph 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
(1) to partially indemnify successful litigants for the cost of litigation;
(2) to encourage settlement; and
(3) to discourage and sanction inappropriate behaviour by litigants.
ANALYSIS
Deferral of the Issue of Costs to Trial
[38] The Court is not prepared to defer the decision with respect to costs of these two motions to the trial judge. The use of the word "shall" in sub rule 24 (10) fetters the court's discretion with respect to when such decisions are to be made. In my view, it is likely an error in law to defer the issue of costs to the trial judge. As such the judge who deals with any step in a case for which costs are sought, is required to promptly decide, in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
[39] Even if a judge who deals with a step in the case retains some residual discretion as a result of the operation of her duty to interpret and apply the rules in accordance with the primary objective, I would not exercise my discretion in this case to defer the decision regarding costs to the trial judge. If such discretion does exist, and in my view it does not, it stands to reason based on the mandatory language in subrule 24(10) that such discretion should only be exercised in exceptional circumstances. None of the reasons advanced by the father as justification for deferring the decision with respect to costs of the motion heard July 10, 2015, or the two motions heard on August 31, 2015, are compelling.
[40] For example, the fact that the same judge is to schedule to be the trial judge as heard the two motions is not a compelling reason for this court to defer its decision on costs to the trial judge. This happens all the time and is, by no means, unusual. Further, while this appears to be the case right now, there is no guarantee of this. Trials get rescheduled. Judges' schedules are subject to change. Until the trial starts, the judge scheduled to preside over the trial is not seized of the matter.
[41] The argument that the trial judge is better suited to determine the cost issue as she will, with the benefit of both hindsight and factual findings, be able to apportion the responsibility for costs based on the righteousness of each party's position on the substantive issues, is also not compelling. Case management, and in particular motions judges, are rarely able to determine which of the party's is righteous due to credibility and factual disputes, and, an inability to weigh the evidence within the context of a full and tested evidentiary record. If the objective of a cost award at the pretrial stage was to ensure that the righteous person was indemnified, then costs of every step in a case would almost always be deferred to the trial judge. Clearly, given the mandatory directive in sub rule 24(4), the objective of cost awards at the pretrial stage, lies elsewhere.
[42] I turn next to decide the issue of who, if anyone is entitled to costs of the motions.
Two Motions Heard on August 31, 2015
[43] Neither party obtained the relief he or she sought and each of their motions were dismissed in their entirety.
[44] I am not persuaded by the mother that success was divided because the mother's offer to settle mirrored the overall result of the motion with one minor variance. At the motion the mother in effect sought to change the status quo and to make the resumption and continuation of the father's contact with the child pursuant to that changed status quo, conditional on certain family counselling provisions. Her last offer to settle mirrored the overall result of both motions in all aspects save and except for one – the conditional family counselling provisions. The provisions relating to the restoration of the status quo were not, however, severable from the family counselling conditions and based on the language used were inextricably intertwined.
[45] I have reviewed both of the cases counsel for the mother's counsel referred me to (Serra v. Serra, supra, and Costa v. Perkins 2012 CarswellOnt 6668). These case do not, in my view, stand for the proposition that non-severable provisions in an offer to settle can serve as a yard stick with which to measure success and by extension, entitlement to costs. What they stand for is the proposition that offers to settle which do not meet the strict requirements of rule 18, may be considered as part of the subrule 24(11) and 24(4) analysis at the quantum stage.
[46] As confirmation of this I note that in both cases the discussion of the offers is tied to quantum, not entitlement. Consider the following comment at paragraph 12 of Serra v. Serra, supra:
12 As this Court has observed, costs awards, at the end of the day, should reflect "what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties": see Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A.), at para. 24. Here, having regard to all of the relevant factors and considerations outlined above, the appropriate order for costs in our view is as follows:.. (Emphasis added)
[47] The failure to make a reasonable offer to settle, or any offer at all, or to accept such an offer, can serve as a sword to cut down the quantum of costs the successful party would otherwise be entitled to. Similarly, the terms of an offer to settle made by a losing party which turn out to approximate the result, or which replicate the result but which do not meet the formal requirement of a rule 18 offer, can serve to reduce the costs that might otherwise be payable by that party. A prerequisite in each of these examples, however, is that there be a successful party. No one was successful on either of these motions.
[48] For these reasons I find that neither party was successful on either motion and neither of them is entitled to costs of these motions.
The July 10, 2015 Motion
[49] Whether former counsel for the father thought he had previously made his client's position on the issue of the resumption of access clear or not, by June 26, 2015, he knew that the mother's counsel did not know or understand his client's position. He also knew by this date that the mother's counsel required confirmation of his client's position.
[50] In the face of this knowledge, the father's former counsel:
a. sought an adjournment of the July 10, 2015 date;
b. made representations on June 29, 2015, that he knew or ought to have known would mislead the mother into thinking that the father was agreeing to the continuation of suspended access pending the settlement conference he was insisting be held instead of a motion, and which would lead her not to prepare for a motion to be heard on July 10, 2015.
[51] The behaviour of the father's former counsel and by extension, the father's as his instructing client, was grossly unfair and completely unreasonable. I find that this conduct was intended to deceive or mislead the mother so that she would not prepare for and proceed with the motion she had made very clear she intended to bring if the father was not agreeing to continue the suspension of his access until the settlement conference. Such conduct, I find, amounts to bad faith. Given this finding the mother is entitled to costs of the July 10, 2015, motion on a full recover basis in accordance with subrule 24(8).
[52] Even if I had not found that this conduct amounts to bad faith, I would still have awarded the mother her costs of the motion on a full recovery basis, given my finding that it was grossly unfair and completely unreasonable.
[53] The mother was successful in obtaining the relief she sought on the motion heard on July 10, 2015. The fees she incurred between June 24, 2015 and July 10, 2015, were almost entirely the result of the father's conduct. The mother was put to the added and unnecessary expense of bringing the urgent motion heard on July 10, 2015. The responsibility for the costs she incurred from June 24, 2015 to and including the attendance on July 10, 2015, lies squarely and solely at the feet of the father. I see no reason why these costs should be borne by the mother.
[54] Given the presumption that the successful party is entitled to costs and the balance of the circumstances, I find that the mother is entitled to recover the costs incurred between June 24, 2015 and July 10, 2015, on a full recovery basis.
[55] There was no challenge to the reasonableness of the hourly rate charged by the mother's counsel or with respect to the amount of time spent on any of the tasks outlined in the mother's bill of costs. Given her counsel's year of call and having reviewed the bill of costs, I find both his hourly rate and time spent reasonable.
[56] Of the $17,890.68 the mother seeks in costs, $234.43 represents disbursements. As this is not broken down such that I can determinate either the nature of the disbursements or the date on which they were incurred, I have not allowed any recovery on account of disbursements.
[57] According to the mother's bill of costs the amount of time spent by her counsel between June 24, 2015, and July 10, 2015, was about 13.2 hours. Of the 13.2 hours about .2 hours relate to issues that appear to have nothing to do with the motion heard on July 10 th (i.e. letter from assessor and receipt of notice of change in representation). I conclude that the time spent between this period which relates to the motion heard on July 10, 2015 is approximately 13 hours. Applying her counsel's hourly rate of $325 and 13% for HST, the total fees, inclusive of HST, that she incurred during this period were $4,774.25. Accordingly, this is the amount that costs will be fixed at and payable by the father.
ORDER
[58] For all these reasons I make the following order:
Each party's claim for costs of the two motions heard on August 31, 2015, is dismissed;
The Respondent shall pay to the Applicant, within 30 days, costs of the motion heard on July 10, 2015, fixed in the amount of $4,774.25, inclusive of HST and disbursements.
Released: November 24, 2015
Signed: "Justice Victoria Starr"