Court File and Parties

Court File No.: FC-20-1018 Date: 2022/01/10 Superior Court of Justice - Ontario

Re: Nicholas John Dejong, Applicant And: Rebecca Lynn Dejong, Respondent

Before: Justice D. Summers

Counsel: Susan E. Galarneau, for the Applicant Mimi Marrello, for the Respondent

Heard: In Writing

Costs Endorsement

[1] This costs endorsement arises out of three events after the respondent mother removed the children from the matrimonial home without notice or consent, and then withheld them for a month.

[2] The first event was the applicant father’s procedural motion seeking leave to proceed on an urgent basis.

[3] The second was the substantive motion where the applicant father sought orders for interim sole decision-making or, in the alternative, joint decision-making, primary residence, a fixed access schedule for the respondent, non-removal of the children from the Ottawa area, continuity of their school, police enforcement and exclusive possession of the matrimonial home. The respondent, although not filing a cross-motion, requested relief in her affidavit. She sought orders for interim primary care, interim supervised access or, alternatively, daytime access only to the applicant, telephone and FaceTime access, exclusive possession of the home with the applicant to pay all household expenses. In submissions, she also sought the involvement of the Office of the Children’s Lawyer. For reasons that can be found at 2020 ONSC 5367, I ordered temporary without prejudice joint decision-making, the return of the children to the matrimonial home, and parenting time to the applicant every Tuesday and Thursday from 3:00 p.m. until bedtime and every Saturday from noon until Sunday at 1:00 p.m. to be exercised in the home, in the respondent’s absence. I made an order requesting the assistance of the Office of the Children’s Lawyer by way of a Voice of the Child Report, ordered that the parenting issues return to me for review with additional evidence in relation to the availability of alternate accommodation and the applicant’s alleged mental health issues, as raised by the respondent. I adjourned the issues of exclusive possession and costs to the review.

[4] The third event was the review. There, with the benefit of additional evidence, I ordered interim shared parenting on a 2/2/3 schedule and reasonable contact between the children and the non-residential parent. Further relief was granted, on consent, including orders for interim joint decision-making, non-removal of the children from the Ottawa/Gatineau area without the consent of the parties, counselling for the children, the school they would attend, the sale of the matrimonial home, exclusive possession to the applicant pending the sale, the sale proceeds to be held in trust pending further court order, and disclosure from the respondent. Another order was made requesting further assistance from the OCL, and failing their acceptance, a private parenting assessment.

[5] The parties were encouraged to resolve costs. They were unable to do so. For reasons that follow, I order that the respondent pay costs to the applicant of $17,250 within 30 days.

Positions of the Parties

[6] The applicant seeks costs of $20,900 based on a total solicitor-client account of $21,568.72 and asks that payment be made from the respondent’s share of the house sale proceeds. He submits that he was the successful party and points to the favourable outcomes he experienced at each appearance and says, overall, the court rejected the positions taken by the respondent and the relief she sought. The applicant relies on his severable Offer to Settle. He says it was as good as, if not identical in most instances, to the outcome on the review motion. He also underscores that many issues were resolved on consent just days before the hearing on terms that mirrored his Offer. In addition, he asserts the respondent’s behaviour was unreasonable from the outset.

[7] For her part, the respondent contends that success was divided and says no costs should be ordered. However, if the court does order costs, she asks that they be deducted from the equalization payment owed to her or paid from her share of the house proceeds. She says the court was sufficiently concerned about the applicant’s mental health that it exercised caution, gave her temporary primary care pending the review motion, and requested the assistance of the OCL. In this regard, she says she was successful. Although the respondent did not make an offer to settle, she says they both worked hard to resolve the motion and, indeed, reached consent terms on all but one issue. With respect to the applicant’s Offer to Settle made November 6th, she points to the November 12th deadline to accept without costs and says when the motion was adjourned from the 13th to the 27th, the deadline for acceptance without costs should also be considered as extended to the 26th. She says because so many issues were resolved by then, the applicant’s offer should be given little, if any, weight.

The Law and Analysis

Success

[8] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (FLRs) provides that the successful party is presumptively entitled to costs. Determining liability for costs, therefore, starts with consideration of success: see Sims-Howarth v. Sims, 2000 ONSC 22584 at para. 1, cited with approval in Mattina v. Mattina, 2018 ONCA 867, at para. 13.

[9] Where success is divided, subrule 24(6) provides the court with the discretion to apportion costs as appropriate. The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)). Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)). See: Arthur v. Arthur, 2019 ONSC 938.

[10] Here, I am satisfied that the applicant was the successful party. The primary issues before the court were decision-making and parenting time. At each of the three steps outlined above, the applicant was either successful or predominately successful. In the first instance, the court agreed that his motion was urgent. On the motion, I awarded interim joint decision-making and while I did not immediately award equal time-sharing as sought by the applicant, the parenting time ordered was far more generous than that the respondent proposed and I did not impose the significant restrictions that she sought. In my view, success at this stage rests with the applicant. It was not divided, as the respondent contends. When it came time to hear the review motion, all but the issue of parenting time had been resolved, and there, the applicant was unquestionably successful. He is entitled to costs.

Offer to Settle

[11] Rule 18 of the FLRs governs offers to settle and plays a significant role in relation to costs awards. Subrule (14) sets out the costs consequences of not accepting an offer. It provides that a party who makes an offer is entitled to costs to the date the offer was served and full recovery of costs from that date, if certain conditions are met, unless the court orders otherwise. The conditions are as follows:

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] To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer) Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ); Rebiere v. Rebiere, 2015 ONSC 2129 (SCJ); Scipione v. Scipione, 2015 ONSC 5982 (SCJ). The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order (Sepiashvili v. Sepiashvili, 2001 ONSC 25708, 2001 CarswellOnt 3459, additional reasons to 2001 CarswellOnt 3316 (SCJ); Wilson v. Kovalev, 2016 ONSC 163 (SCJ)).

[13] The applicant was the only party to make an offer to settle. It was dated November 6th and presented in four severable parts. The offer did not expire and was open for acceptance, in whole or in part, until 4:00 p.m. on November 12th, the day before the motion. Thereafter, acceptance was conditional on payment of full recovery costs. Then, for circumstances beyond the respondent’s control, she required an adjournment and the matter was rescheduled for November 27th. The respondent did not make a counter-offer nor does she appear to have responded in any way until November 23rd. It was on the 24th that the parties reached agreement on the terms as proposed in the applicant’s offer but for parenting time. He proposed equal time-sharing and she proposed a more limited schedule. The applicant was clearly successful on that remaining issue.

[14] I am not persuaded by the respondent’s argument that the adjournment operated to extend the deadline for acceptance of the offer without costs to the 26th being the day before the hearing. The deadline in the offer was clear and there is no suggestion that it was amended, verbally or otherwise. In my view, and subject to the comments below under rule 24(12), the applicant is entitled to the cost consequences of r. 18.

The Amount to be Paid

[15] Subrule 24(12), requires the court to consider the following factors when setting the amount of costs,

(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] The applicant submits that the respondent behaved unreasonably. I agree. She removed the children from the home without notice to the applicant or his consent. She withheld them thereafter and allowed only minimal virtual contact with the applicant and took no steps herself to bring this matter into court. I add to this her subsequent decision to let weeks pass before telling the applicant that she had made alternate housing arrangements, that she was no longer seeking exclusive possession and was prepared to list the matrimonial home for sale. Both parties acknowledge that this case moved forward very quickly and, accordingly, legal costs rose very quickly. Even more reason, I should think, for a party to advise the other party quickly when their position has changed. I also consider that the applicant made a very reasonable offer to settle that the respondent waited three weeks to address, and in the interim, the applicant incurred significant additional costs to prepare his reply material. At no time did the respondent make an offer to settle despite the situation lending itself to compromise.

[17] I accept the respondent’s submission that the docket information provided by the applicant includes time that was not related to the motion and I adjust for that. I also adjust the amount sought to reflect that the provisions of r. 18 say that any entitlement to full recovery costs runs from the date of the offer forward, otherwise the entitlement is to costs, that I presume to be in some lesser amount. In the exercise of my discretion, I also consider the Bill of Costs submitted by the respondent showing that her costs for the motion inclusive of disbursements were $31,247.89. In Boucher v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579 at para. 26, the court said that fixing costs is not simply a mechanical exercise. It does not begin or end with the calculation of hours multiplied by rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by the actual costs incurred by the successful litigant. The court went on to say that when deciding what is fair and reasonable, the expectation of the parties concerning the quantum of a costs award is a relevant factor (Ibid at para. 38). Although Boucher et al. was decided under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the principle is equally applicable to costs determinations under the Family Law Rules: see Jackson v. Mayerle, 2016 ONSC 1556. In this instance, the respondent should have expected to pay an amount comparable to her own costs.

[18] I also consider the Court of Appeal decisions in Mattina v. Mattina, 2018 ONCA 867 and Beaver v. Hill, 2018 ONCA 840. In Mattina the court identified the fundamental purposes of modern costs rules. They are: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly as required by subrule 2(2) of the FLRs. In Beaver v. Hill, the court reminded us, as set out in rule 24(12) itself, that reasonableness and proportionality are touchstone considerations to be borne in mind by the court when exercising its’ discretion over costs.

[19] Considering all of the above, including the respondent’s behaviour, her own legal fees, her failure to make an offer, and the applicant’s entitlement to the cost consequences of r. 18(14), I find it proportionate and reasonable for the respondent to pay costs of $17,250 within 30 days, from her share of the proceeds from the sale of the matrimonial home.

Justice D. Summers Date: January 10, 2022