Court File and Parties

Ontario Court of Justice

Date: December 11, 2020

Court File No.: Toronto D55996/12

Between:

Nadine Fearon Applicant (Mother)

— AND —

Kevin Ellsworth Respondent (Father)

Before: Justice Robert J. Spence

Counsel:

• Mr. Jared Persaud, counsel for the applicant mother
• Ms. Christine Vanderschoot, counsel for the respondent father

Endorsement on Costs following Written Submissions

Released December 11, 2020

R. J. SPENCE J.:

1: INTRODUCTION

[1] In my endorsement dated September 9, 2020 I gave the respondent father leave to seek his costs against the mother as a result of three unsuccessful motions brought by the mother.

[2] By three separate 14B motion forms dated May 20, 2020, June 4, 2020 and August 10, 2020, the mother sought leave from the court to bring three urgent motions.

[3] The mother was unsuccessful in all three of her urgent motion requests.

[4] The father seeks full recovery of his costs on these urgent motion requests, in the total amount of $23,995. Specifically, this breaks down as follows:

• (a) The first motion - $1,343,
• (b) The second motion - $10,158, and
• (c) The third motion - $12,494.

[5] In her response, the mother does not expressly argue against a costs award. Nor does she suggest what an appropriate amount for costs might be. Instead, she argues that the father's request for costs is excessive.

2: LEGAL CONSIDERATIONS

2.1 General Principles

[6] The case of Mattina v. Mattina, 2018 ONCA 867 sets out the following fundamental purposes of modern costs rules:

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).

[7] The Court of Appeal in Beaver v. Hill, 2018 ONCA 840 emphasized the importance of reasonableness and proportionality, in the exercise of the court's discretion in awarding costs.

[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 consider 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.

2.2 Offers to Settle

[11] Subrule 18(14) sets out the consequences of a party's failure to accept an offer to settle that is as good as or better than the trial or motion result of the person making the offer. It reads as follows [emphasis added]:

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 [emphasis added]:

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.

[12] Even if subrule 18(14) does not apply, subrule 18(16) provides that 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.

[13] The onus of proving that the offer is as good 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).

[14] The technical requirements of subrule 18(14) must be met to attract the costs consequences that subrule. See: Ajiboye v. Ajiboye, 2019 ONCJ 894.

2.3 Other Factors Affecting Costs Orders

[15] Subrule 24(12) reads as follows [emphasis added]:

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.

[16] Subrule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24(12)(a)(i) above). It reads as follows:

DECISION ON REASONABLENESS

(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.

[17] Family law litigants are responsible for, and accountable for, the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.

[18] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.). However, a party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih pars. 7-13.

[19] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v. Balsmeier, 2016 ONSC 3485.

3: THE THREE MOTIONS

3.1 The First Motion – May 20, 2020

[20] Mother brought a 14B motion seeking an urgent motion before a case conference. She sought an order for the return of the parties' child, alleging that the father was in contempt of a final court order dated September 3, 2015 (final order).

[21] The mother filed the final order in support of her request for an urgent motion date.

[22] By endorsement dated May 22, 2020, I dismissed the mother's 14B, for the following reasons:

• The final order did not deal specifically with how parenting time would be shared;
• The mother's affidavit was undated, unsigned and unsworn;
• The mother improperly brought her motion as a free-standing proceeding without having first issued a motion to change or a contempt motion;
• The mother's affidavit of service was not sworn and did not comply with subrule 6(4.1); and
• The mother failed to serve the motion by special service as required by subrule 6(4).

[23] However, as soon as the father received the mother's 14B he contacted his counsel who then began to work on responding material. The father incurred legal costs in respect of this motion.

[24] The mother brought her motion without counsel, and that fact was apparent in the way she had gone about this.

[25] Father's counsel submitted a Bill of Costs in the amount of $1,343, inclusive of H.S.T. Father seeks full recovery of these costs.

3.2 The Second Motion – June 3, 2020

[26] The mother's second motion sought leave to hear her motion on an urgent basis. She sought leave to issue and serve her motion to change on the father's counsel.

[27] Substantively, she sought an order that the final order be changed, such that the parenting exchanges be permitted by Via Rail as well as by driving by the mother.

[28] The mother filed a supporting affidavit with her 14B motion.

[29] On June 5, 2020, I dismissed her request for procedural deficiencies. At the same time, I endorsed that I would reconsider her request upon the filing of proper material, and upon allowing the father four days to respond.

[30] The father subsequently responded to the mother's 14B. He opposed her request for an urgent motion date.

[31] On June 10, 2020, I dismissed the mother's motion, but on a without prejudice basis, stating that I would be prepared to consider her request upon the filing of an originating process, in this case, a motion to change. [1]

[32] On the same date, June 10th, I prepared a second endorsement which reflected that the mother's change motion had been filed with the court. I gave the father until July 5, 2020 to respond to that change motion and, in the same endorsement, I adjourned the matter to July 14, 2020, for a case conference, rather than scheduling an urgent motion.

[33] Father's counsel submitted a Bill of Costs in the amount of $10,158, inclusive of H.S.T., covering work performed between May 26, 2020 and June 11, 2020, which counsel states is in respect of the second 14B motion. Father seeks full recovery of these costs.

3.3 The Third Motion – August 10, 2020

[34] Pursuant to my second endorsement on June 10, 2020, the court conducted a case conference on July 14, 2020. Based on the material which the parties had filed, the court engaged in a discussion respecting the threshold issue in the change motion, namely, whether the mother would be able to establish that there had been a material change in circumstances pursuant to section 29 of the Children's Law Reform Act, such that the court could then consider whether it would be in the best interests of the child to make the order mother was seeking.

[35] Because the mother was seeking an order requiring the child to travel, back and forth between the parents' homes, by Via Rail, alone, I ordered a Voice of the Child Report to be conducted by the Office of the Children's Lawyer (OCL), in order to ascertain the child's views and wishes. I then adjourned the matter to September 9, 2020 for a further case conference.

[36] However, prior to the return of the matter on September 9th, the mother filed another 14B motion form on August 10, 2020, seeking an urgent motion for relief.

[37] Specifically, she sought the following:

• an order to stay the summer week-about schedule contained in the final order, and
• an order that the mother should have primary care of the child, commencing forthwith, for the balance of the summer, until the commencement of the regular bi-weekly schedule provided for in the final order.

[38] She served that 14B motion form, together with her supporting affidavit on the father's counsel.

[39] Father's counsel immediately set to work preparing the father's responding affidavit which he swore on August 14, 2020 and served on the same date.

[40] On August 17, 2020, I dismissed mother's 14B motion request, setting out brief reasons for that dismissal. I ordered the parties to file case conference briefs for the previously scheduled case conference of September 9, 2020.

[41] Father's counsel submitted a Bill of Costs in the amount of $12,494, inclusive of H.S.T., covering work performed between June 12, 2020 and August 19, 2020. Father seeks full recovery of these costs.

4: ANALYSIS

4.1 Subrule 18(14) – Discretion Not to Award "Full Recovery" of Costs

[42] Following the service of each of the mother's 14B motions, father's counsel reached out to the mother with various offers to settle. Additionally, father's counsel sent emails to the mother proposing different options for settling the mother's claims. [2]

[43] The mother also served two offers to settle.

[44] It is unnecessary to review the details of the father's offers to settle, as the court dismissed all the mother's motions. The outcome for the father exceeded anything which was contained in any of his offers.

[45] In accordance with subrule 18(14), the combination of the various offers together with the outcomes, presumptively entitles the father to his full recovery of costs.

[46] However, despite the presumption in subrule 18(14), I have decided to exercise my discretion by invoking the clause "unless the court orders otherwise" in that subrule. I make that decision for several reasons.

[47] First, the mother was experiencing a difficult and high-risk pregnancy. She was about to give birth to triplets and had been hospitalized and was on bedrest. Her medical circumstances and family situation made it extremely difficult to arrange for transportation for the child to travel between the parents' residences. [3]

[48] Her motion(s) were an attempt – which the court accepts as bona fide [4] – to arrange for the parties' 11-year-old child to spend time with her and to be present at the birth of his siblings-to-be.

[49] Second, while the court did dismiss the mother's request that the child be allowed to travel by train between Oshawa and Maidstone [5], on his own, and during the Covid-19 pandemic, the court recognizes that the parties had previously agreed on a number of occasions and, in fact, had facilitated some train travel for the child between the parents' residences. [6]

[50] Third, I am mindful that we are all navigating unprecedented and uncharted waters during this Covid-19 pandemic. Requests for urgent motions had been mandated by the courts because of extreme pressure on what had become minimal court resources following the Provincial lockdown in March 2020. This is not the fault of parents, particularly parents who have the best interests of their children at heart.

[51] But for the pandemic, the mother would not necessarily have been forced to seek leave to proceed with an urgent motion. And having to do so in writing, and remotely [7], and in difficult personal circumstances, all combined to make these motions that much more challenging.

[52] Fourth, the mother did serve two offers to settle – one on June 3, 2020 and the second on July 24, 2020. [8] And while neither of those offers was accepted, neither represented a patently unreasonable approach to the parenting issues which were then in play.

[53] Fifth, while all three of the mother's motions were dismissed, there was a degree of overlap between the motion material and the case conference material which the parties prepared and filed for the case conference which the court conducted on July 14, 2020. The mother should not have to pay for the cost of this overlap.

[54] Sixth, none of the three motions was argued on a substantive basis. In one case, the motion was dismissed for procedural deficiencies. And in another case, the court turned the request for an urgent motion into a case conference.

4.2 The Meaning of "Full Recovery"

[55] Even if I had decided that a full recovery award was appropriate, I would not have made an award based on the totals in counsel's Bills of Costs.

[56] Not infrequently, counsel on behalf of parties seeking full recovery of costs submit their Bill of Costs and argue, in effect, here is what I charged my client for all my legal services, and so this is what the opposite party ought to pay.

[57] This is something akin to an older concept in civil cases where parties argued for costs on a "solicitor and his own client" scale. In theory, this meant that whatever a solicitor charged his or her own client, should be paid by the opposite party in those rarer cases where costs were being awarded at that highest scale of costs. See: Davies v. Davies.

[58] Those older concepts of costs on a "party and party" scale, "solicitor and client" scale and "solicitor and his own client" scale have fallen into disuse. They have been overtaken by a modernization of the costs rules, both in the Rules of Civil Procedure, as well as in the Family Law Rules.

[59] It is not the purpose of this decision to delve deeply into the evolution of the costs rules. However, it is important to point out that the seemingly widely held belief amongst counsel in family law proceedings that they can simply submit their Bill of Costs and ask for full payment from the opposite party is not at all what the modern costs rules contemplate.

[60] Simply put, the reference in subrule 18(14) to "full recovery" of costs does not mean, in effect, here is what I charged my client, so this is what you (opposite party) must pay.

[61] In Arthur v. Arthur, 2019 ONSC 938, Justice Deborah Chappel had the following to say, at paragraph 28 [emphasis added]:

The principles of proportionality and reasonableness are "the touchstone considerations to be applied in fixing the amount of costs" (Beaver, at para. 12). In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation (Lupien v. Carmichael, 2017 ONSC 2929 (S.C.J.); Darling at para. 12). Polowin J. commented on the general principles respecting the quantification of costs in Sommerard v. I.B.M. Canada Ltd., [2005] O.J. No. 4733 (S.C.J.). She succinctly captured the essence of the quantification exercise based on the principles outlined above as follows, at paras. 53-59:

The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectation of the losing party.

[62] And at paragraph 40, the court continued [emphasis added]:

With respect to the term "full recovery" costs referred to in the Family Law Rules, the question has arisen as to whether this phrase refers to the full amount which a party claims, subject to adjustments based on reasonableness, or something between the concept of "substantial indemnity" and the full amount claimed. In my view, the term "full recovery" refers to the full amount which the party has claimed, subject to any adjustments that the court considers appropriate based on the reasonableness and proportionality of the costs claimed. In other words, it means the total reasonable and proportional amount that a court determines the party should have spent in dealing with the case (Jackson, at para. 91). This conclusion accords with the case-law in the civil context which has interpreted the phrase "full indemnity costs" (Toronto Standard Condominium Corporation v. Baghai Development Ltd., [2012] O.J. No. 2746 (C.A.)).

[63] I have taken the time to discuss the meaning of "full recovery" for the following reason. I believe it is helpful for the profession to understand that when counsel make submissions for full recovery of costs under the rules, it means something very different than simply submitting a Bill of Costs and asking for what amounts to full restitution of that Bill.

4.3 Amount of Costs to be Awarded

[64] Having decided that full recovery is not appropriate, I must now decide what amount is reasonable and proportionate.

[65] I deal with the various factors and considerations under rule 24 in the following paragraphs of these reasons.

[66] Father was the successful party and is presumptively entitled to his costs.

[67] The issues – parenting time and the mode of travel for the child is the primary issue in the motion to change and was the focus of the 14B motions. This was, and remains, of considerable importance to the parties.

[68] Father's two lawyers charged fees based on hourly rates which are reasonable and in line with their level of experience at the bar.

[69] Time spent by father's counsel – In reviewing Bills of Costs, I would characterize the 57 hours of time spent as substantial. [9]

[70] Having reviewed counsel's Bills of Costs, the court concludes there was overlap between the 14B motions and the substantive motion to change. Most notably, many hours included in the third Bill of Costs were docketed prior to the third motion on August 10, 2020. While this time spent may have been useful for the ongoing motion to change, it does not properly form part of the request for costs on the 14B motion.

[71] Furthermore, the court finds an unexplained inconsistency in the father's request for costs in the first two dismissed motions. Father's submission for costs seeks $11,501 for the first two 14B motions. [10] And yet, by 14B motion form dated June 25, 2020, father's counsel had earlier filed her own 14B motion form seeking costs in the amount of $7,500 for those two unsuccessful motions brought by the mother. [11] So, on June 25th, father was of the view that the first two 14B motions should attract costs of $7,500; and on November 20th, when the court received the current costs submissions, that claim had risen to $11,501. This unexplained difference of more than $4,000 is a factor which the court considers in assessing the father's claim for costs.

[72] I turn to the mother's behaviour. In part, rule 24 is designed to address whether a party's behaviour was unreasonable. [12]

[73] Mother's behaviour in repeatedly bringing requests for urgent motions was unreasonable. She must accept responsibility, and be accountable to the father, for her position in respect of these motions. See: Heuss, supra.

[74] It is important for parties to understand that the mere fact of a court proceeding does not constitute an invitation for parties to bring motions whenever they choose to do so, regardless of good faith intent.

[75] Every action by a party has consequences. And one of the most obvious consequences is the necessity for the opposite party to respond. This costs money. Someone must pay.

[76] Whether or not the court, as an institution, imposes fees on litigants, the real monetary cost [13] of doing business in a court setting, is the cost of hiring counsel. And the entire structure of the costs rules is designed to allocate the fiscal responsibility for these proceedings in a way which is fair and proportionate, including imposing costs on parties who act unreasonably or who bring proceedings which may turn out to be unsuccessful.

[77] I also consider that some of the mother's behaviour in bringing these motions was unreasonable and could have been dealt with differently. In particular, the mother's decision to bring her third motion reflected poor judgment on her part. At the case conference held July 14, 2020, the court ordered, on consent, a Voice of the Child report, to be prepared by the OCL. The court was concerned that before it considered whether it should order the child to get on a train, alone, and during a pandemic, to travel several hours, the child's voice should be heard.

[78] While that OCL report was still outstanding, and before the court was able to obtain the child's views and wishes, the mother chose to bring her third motion less than four weeks later. The motion was again urging the court to permit the child to travel by train. This was the very issue which the court asked the OCL to investigate. The more appropriate approach for mother to take would have been to await the outcome of the OCL report.

[79] The mother submits that "$24,000 is a lot to pay for 12 pages in affidavit responses". However, it is well understood by the legal profession that the actual written material filed in a court proceeding is generally the tip of the iceberg in any litigation. Sometimes it is more time-consuming to produce brief, focused and cogent material than to produce longer, more rambling, and less focused material.

[80] That said, I agree with the submission that "$24,000 is a lot to pay", but not because of the 12 pages.

[81] The overarching consideration in any court's decision regarding costs, must be clause 24(12)(a) of the rules, namely, the overall "reasonableness and proportionality" of the costs which a party seeks. As I noted earlier, this is emphasized by the Court of Appeal in the Beaver case, supra. As the Court in Beaver stated, at paragraph 12:

As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

[82] The court's task in this case is not to decide whether it is reasonable for father's counsel to submit a bill to father in the amount of $23,995. Rather, the court's task is to decide what is a reasonable and proportionate award to require mother to pay.

[83] It is difficult for this court to conclude that the "reasonable expectation of the losing party" in this case is that she would be liable for costs in the 14B motions in an amount anywhere close to $23,995.

[84] After balancing all the principles referred to in these reasons, I have concluded that a reasonable and proportionate costs award is $10,000. I fix the costs owing by the mother to the father in the amount of $10,000, inclusive of H.S.T. These costs shall be paid at the rate of not less than $1,000 per month, until fully paid, commencing January 1, 2021.

[85] There will be an order to go accordingly.

Released: December 11, 2020

Justice Robert J. Spence (Signed electronically)

Footnotes

[1] At the time of this endorsement, I had not been made aware that the mother had in fact commenced her motion to change. I was working remotely and did not have access to the physical court file. However, court staff immediately afterwards brought this to my attention, which resulted in my second endorsement of the same date.

[2] I do not find it necessary to detail all of the individual offers and outreaches from the father's side, apart from noting that the father acted promptly and reasonably in attempting the settle the motions.

[3] The parents live approximately 400 kilometers apart.

[4] Albeit somewhat misguided

[5] A small town just outside of Windsor

[6] This was after the making of the final order and before the mother commenced the current proceedings.

[7] Not only from the courthouse but generally from their own counsel's office as well

[8] This second offer was more focused on settling the entire Motion to Change brought by mother.

[9] This is not intended in any way as a criticism of the work performed by father's counsel who clearly worked quickly and industriously on behalf of her client.

[10] As noted earlier, $1,343 for the first motion and $10,158 for the second motion

[11] This June 25th request for costs was made prior to the court granting permission for costs submissions in its endorsement dated September 9, 2020.

[12] Subrule 24(5) and subclause 24(12)(a)(i)

[13] Money is only part of it. In some cases, the psychological costs to the parties can be even more profound.