Court File and Parties

NEWMARKET COURT FILE NO.: FC-15-49040-00 DATE: 20160516 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Seon Mohr Applicant – and – Michelle Noreen Sweeney Respondent

Counsel: Veena Pohani, for the Applicant Carolyn J. Lloyd, for the Respondent

HEARD: March 9, 2016 REASONS RELEASED: April 1, 2016

COSTS ENDORSEMENT

MCGEE J.

Amounts Sought

[1] The applicant father seeks a full recovery of costs in the amount of $15,835.82 for the motion heard March 9, 2016. On this same motion, the respondent mother seeks a partial recovery of $9,000 in costs drawn from a full recovery amount of $17,616.98. Each of the amounts is expressed as inclusive of disbursements and HST. Each party prepared extensive materials, a Factum and Book of Authorities.

[2] The parties agree that the father was unsuccessful on the issues of temporary custody and a change in venue; and successful on the parenting scheduling terms, as argued on the motion. The mother accounts for this divided success in seeking the partial recovery of $9,000. The father does not.

Divided Success

[3] Rule 24 (6) of the Family Law Rules states that when success is divided, the court may apportion costs as appropriate. [1] The general approach is to leave each party responsible for his or her own costs. [2] Justice Pazaratz recently explored the criteria for a finding of divided success in Scipione v. Del Sordo, 2015 ONSC 5900. I embrace his view that the analysis of divided success is contextual. Family court cases invariably involve multiple issues, some with complex interweaving. Not all issues are equally important, equally time-consuming or equally expensive to determine.

[4] I accept the father’s submissions that a parenting schedule was of utmost importance to him. He has been diligent in travelling to London for parenting time. He also attended a meeting in London to attempt a resolution of the litigation issues.

Offers to Settle

[5] The starting point in any determination of costs is a review of the parties’ respective Offers to Settle, and specifically, whether any Offer meets the criteria of Rule 18 (14) of the Family Law Rules. That Rule provides for a full recovery of costs from the time an Offer is served that is as favourable, or more favourable than the result on the hearing.

[6] The mother served two Offers to Settle: February 23, 2016 and March 7, 2016. Both contained parenting terms as favourable, or more favourable to the father than that ordered on the motion. [3] The February 23, 2016 Offer to Settle was served one week before delivery of the mother’s Notice of Motion. Such early service is an exemplary practice.

[7] The February Offer provides for a full recovery of costs if not accepted by February 26, 2016 at 4:00 p.m. The March 7, 2016 Offer does not revoke the former. It provides for a full recovery of costs if not accepted by 12:00 noon on March 8, 2016. The Offer was entirely, and clearly severable: allowing the father to pick which terms he chose to incorporate into an Order.

[8] The father served one Offer to Settle dated March 4, 2016, five days before the hearing date. The parenting schedule terms within the Offer were also as favourable as, or more favourable than those awarded on the motion. Paragraph 4 of his Offer provides for the venue to remain in Newmarket. It is possible to read paragraph 5 of the Offer as making the parenting terms severable, although it is not clear whether the stated costs of $2,500 on acceptance would be payable.

[9] Some flexibility is required when using Rule 18 (14) of the Family Law Rules in contested parenting schedule hearings. Detailed parenting schedule proposals, and the multidirectional orders that are often seen in difficult cases are not always amenable to a simple line by line comparison. More important that the specifics of the terms, is a comparison of the underlying principles, and how the child(ren) will experience the scheduled time. For example, which parent effects a transfer will not create as great an impression on a young child, as whether she has sleepovers with her non-residential parent. In my view, the latter was the primary focus of this contested hearing.

[10] Within the February 23 Offer, the father had a parenting schedule available for acceptance that would have placed their daughter in his care on overnights starting March 26; before the mother incurred any costs of bringing a motion. In the second Offer of March 7, overnights were to begin on the following weekend of March 19. The father could have accepted the parenting schedule within the March 7 Offer without accepting any other terms, such as a change in venue or parenting. The Order provides for overnights to start on April 16, 2016.

Entitlement to Costs

[11] There has been divided success on the parenting terms, but I find that within the context of this proceeding, the mother is entitled to costs. She served an early Offer, before service of the motion. A key term – overnights- in the parenting schedule was more favourable than the result at trial. This, and her success on the issues of venue and temporary custody persuade me costs ought to be paid by the father.

Quantum of Costs

[12] Determining the amount of costs is not simply a mechanical exercise. Once Rule 24 (11) of the Family Law Rules factors have been considered, the court must apply the over-riding principles of reasonableness and proportionate litigation conduct. The overall objective in an award of costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, with a view to the purposes of a costs award.

[13] Modern costs rules are designed to foster three fundamental purposes:

(a) to indemnify successful litigants for the cost of litigation; (b) to encourage settlement; and (c) to discourage and sanction inappropriate behaviour by litigants. [4]

[14] Both counsels have provided me with Bills of Costs with comparable totals, [5] but within those accounts, I note that the respondent mother’s counsel charged at a lower rate than did the applicant’s counsel. The respondent counsel significantly reduced her client’s account by delegating appropriate work to an articling student and a law clerk, and by reducing her own time for affidavit preparation. Respondent’s counsel incurred slightly higher costs as a result of her counsel practicing outside the jurisdiction.

[15] In comparing the respective accounts, the proposed amount of $9,000 inclusive of disbursements and HST for divided success is quite reasonable for this half-day motion, particularly given the importance, complexity and difficulty of the issues. It is even more so, if one considers the operation of Rule 18 (14) of the Family Law Rules. The mother’s early Offer, and severable Offer entitles her to a full recovery unless the court orders otherwise.

Award of Costs

[16] Applicant’s counsel asks that if an award is made, it be “nominal or proportionate to the father’s ability to pay.”

[17] An inability to pay costs cannot be used as a shield against liability. [6] The purposes of a costs award (set out above) are no less applicable to litigants of modest means. To the contrary, those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings. [7]

[18] For the reasons set out above, the applicant father shall pay costs to the respondent mother in the requested amount of $9,000 inclusive of disbursements and HST. He may pay the costs in instalments of $500 per month starting June 1, 2016. Failure to pay any instalment by the 5th of the month in which it is owed shall accelerate the balance owing, and interest shall accrue on the balance thereafter.

Justice H.A. McGee

DATE: May 16, 2016

[1] Rule 24 (6) of the Family Law Rules [2] Heon v. Heon (H.C.J.) [3] The exact terms may not better, but because the progression to overnights would have started prior to the scheduled date for the motion, the father would have been in a better position by the end of April had he accepted the February Offer. [4] Serra v. Serra, 2009 ONCA 395 (Ont. C.A.) [5] One of the measures of what is fair and reasonable to pay in costs is often arrived at by looking at what the other party has paid for his own legal fees with respect to the matter: Goryn v. Neisner, 2015 ONSC 3290 [6] M.(A.C.) v. M. (D.), [2003] 67 O.R. (3d) 181 (OCA) [7] Balaban v. Balaban, 2007 CarswellOnt 1518, at paragraph 7