Court File and Parties

Date: November 15, 2018

Court File No.: D57818/12

Ontario Court of Justice

Between:

Joann Milonas Applicant

Barry Nussbaum, for the Applicant

- and -

Constantinos Copsas Respondent

Melanie A. Larock, for the Respondent

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

Background

[1] On October 16, 2018, the court released its reasons for decision arising out of a one-day trial about the parenting arrangements for the parties' two children (the children). See: Milonas v. Copsas, 2018 ONCJ 713.

[2] The court granted the applicant (the mother) custody of the children and ordered specified access for the respondent (the father). The court made a number of orders dealing with incidents of custody and access.

[3] The court provided the parties with the opportunity to make written costs submissions.

[4] The father seeks his costs of $10,000. The mother asks that no costs be ordered.

Legal Framework for Costs

[5] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern 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 Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

[6] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25.

[7] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[8] An award of costs is subject to: the factors listed in subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith, subrule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

[9] Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ-Family Court). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ).

[10] Subrule 24(6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.

[11] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.

[12] Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (SCJ); Mondino v. Mondino, 2014 ONSC 1102.

Treatment of Settlement Offers

[13] The father referred in his costs submissions to an offer to settle attached to his settlement conference brief. The court did not take that offer to settle into consideration. The issue of whether the court should consider an offer to settle contained in a settlement conference brief was discussed in Entwistle v. MacArthur. Justice Alex Pazaratz found that the wording of subrule 17(23) precluded the court from considering such offers to settle. He wrote at paragraph 22:

[22] Accordingly, I cannot accept the respondent's submission that the offer in paragraph 16 of the settlement conference brief constitutes an offer under rule 18 of the Family Law Rules. They are different types of offers. In relation to rule 18, litigants always have a choice. They may elect to file an offer, at any stage in the proceeding (before or after the settlement conference). Rule 18 includes many detailed provisions that are not even referred to in paragraph 16 of the settlement conference brief. And if litigants elect to file a formal offer, clause 18(8)(b) very clearly identifies that the terms of the offer "shall not be mentioned to the judge hearing the claim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs."

[14] Justice Pazaratz concluded at paragraph 44 of his decision:

[44] I must conclude that subrule 17(23) precludes me from considering the respondent's offer to settle contained in his settlement conference brief of 24 April 2002, in relation to the current issue of costs. Had the respondent intended, at that time, to present an offer with cost consequences relating to rules 18 and 24, he could (and should) have filed a separate, formal offer as a stand-alone document.

[15] In Farooq v. Majeed, 2011 ONCJ 827, Justice Roselyn Zisman followed Entwistle and did not consider an offer to settle attached to a settlement conference brief when determining costs. This court made the same decision in T.M.B.-P. v. B.P.G., 2018 ONCJ 517.

[16] The mother, in her costs submissions, referred to resolution recommendations made by the case management judge at a conference. Judicial recommendations for resolution at conferences should not be included in costs submissions. See: LeBlanc v. LeBlanc, 2018 ONCJ 499, paragraphs 31 and 32. The court disregarded this portion of the mother's costs submissions.

Costs Consequences of Failure to Accept Offer

[17] Subrule 18(14) reads as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

18(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:

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 the 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.

[18] Even if subrule 18(14) does not apply, the court may take into account any written offer to settle, the date it was made and its terms when exercising its discretion over costs (subrule 18(16)).

[19] The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842 (SCJ).

[20] Close is not good enough to attract the costs consequences of 18(14). The offer must be as good as or more favourable than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482.

[21] The mother and the father both made offers to settle. None of the offers to settle were more favourable to the other party than the trial result.

The Parties' Positions and Offers

[22] The father proposed a detailed parenting plan in a letter dated March 14, 2018, sent by his counsel to the mother's counsel. He proposed a joint custody arrangement, with his access to take place on alternate weekends and on holidays. He also served two formal offers to settle dated September 4, 2018 and September 18, 2018.

[23] The September 4, 2018 offer sets out that the mother will have final decision making authority on major decisions respecting the children's health, welfare and education after consultation with the father. It sets out what the children's religion will be, gives the father the right to baptize the younger child and provides a mechanism for choosing his godparents. This offer proposed that the father would return the children to school or daycare on Monday mornings on alternate weekends and that he would have access each Tuesday evening. It also provided for a review of the parenting order in two years.

[24] In his costs submissions the father attached his counsel's cover letter to the mother's counsel that accompanied his September 18, 2018 offer to settle. The court disregarded the cover letter, as it referred to recommendations made by the case management judge, but considered the offer to settle. The parenting offer was similar to that made on September 4, 2018.

[25] At trial, the father sought a modified form of joint custody of the children, similar to the parenting proposal contained in his September offers to settle. He also sought an order to prevent the mother from changing the children's names in response to her request to be able to do this. He sought overnight access during the week and an extension of his weekend access until Monday morning.

[26] The mother's counsel sent a letter to the father's counsel on September 6, 2018 proposing many changes to the father's September 4, 2018 offer. She was opposed to the father's weekend access extending until Monday mornings and to the father's proposals about religion. She wanted her surname added to the children's names.

[27] The mother made a formal offer to settle dated September 17, 2018. She sought sole custody with prior consultation with the father on major decisions regarding the children. She offered concessions about the children's religious upbringing. She opposed overnight weekday access and proposed that the father's weekend access end on Sundays at 5 p.m. She offered extended holiday access, but not to the extent sought by the father.

[28] At trial, the mother sought sole custody of the children, the right to obtain government documentation for them and to travel with them outside of Canada without the father's consent and the right to change the children's names to include her surname. The access schedule she proposed was similar to that contained in her offer to settle.

Analysis of Success

[29] Based on the offers to settle and the positions taken at trial there was divided success.

[30] The mother was the successful party on the custody issue – she was granted sole custody of the children, including the right to make decisions about the children's religion and extra-curricular activities. The court made a finding that the father had acted in an inappropriately aggressive manner when he didn't get his own way. The detailed decision-making orders sought by the father were not granted.

[31] The father was the successful party on the access issues. The court found that the mother had unreasonably restricted his contact with the children. It significantly expanded his access. The access time ordered at trial exceeded that proposed by the father in his offers to settle. The court found that the father's holiday access proposals were also much more reasonable than the mother's.

[32] The father was the successful party in preventing the children's name change. The court was troubled by the timing of the mother's request and found that raising the issue on the eve of trial smacked of litigation tactics.

[33] The father was the successful party with respect to the mother's requests to dispense with his consent for obtaining government documentation for the children and traveling with them outside of Canada. These claims were dismissed.

[34] The mother was the successful party with respect to other contested incidents of access. The father, at trial, sought a right of first refusal if a party was unable to care for the children for 8 hours or more during that parent's parenting time. That claim was dismissed. The court also preferred the mother's trial position about a mobility restriction and declined to give the parties the option to review the parenting order in one year, as requested by the father.

[35] The court finds that overall, the father was more successful than the mother – but not by much. The dominant issue at trial was the parenting schedule, followed in order of priority by the issues of religious decision-making, name change and the remaining incidents of custody.

Factors Under Subrule 24(12)

[36] In making this decision, the court considered the factors set out in subrule 24(12), which reads as follows:

24(12) 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

(b) any other relevant matter.

[37] The trial conduct of the parties was reasonable.

[38] Findings were made at trial that the father had acted abusively to the mother and that the mother had unjustifiably restricted the father's conduct with the children. This was unreasonable behaviour by both of them.

[39] This case should have settled. The father overreached on his custody claims and on some of the incidents of custody. The mother was much too restrictive with respect to the father's parenting time with the children. She shouldn't have raised the name change issue or sought to dispense with the father's consent to obtain documentation for the children or to travel with them outside of Canada.

[40] The court has no issues with the legal fees claimed by the father's counsel. The father's legal fees were significantly discounted by the law firm representing him and counsel further discounted the costs claim acknowledging some divided success.

[41] The mother has the ability to pay the costs that will be ordered.

Costs Order

[42] Taking into account all of these considerations, an order shall go that the mother shall pay the father's costs fixed in the amount of $4,500, inclusive of fees, disbursements and HST. The mother may pay the costs at the rate of $500 each month, starting on December 1, 2018.

Released: November 15, 2018

Justice S.B. Sherr

Footnote

[1] Subrule 17(23) reads as follows:

(23) Confidentiality of settlement conference. — No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,

(a) an agreement reached at a settlement conference; or

(b) an order.