Court File and Parties

Court File No.: 1224/19 Date: 2023-04-25 Superior Court of Justice - Ontario

Re: Terri Casey, Applicant And: Patrick Michael Casey, Respondent

Before: The Honourable Mr. Justice A. Pazaratz

Counsel: Paul Rowley, Counsel, for the Applicant Christopher Parton, Counsel, for the Respondent

Heard: April 24, 2023

Costs Endorsement

[1] I have been asked to make a costs determination in relation to resolved motions which I had nothing to do with, in a high conflict file where no matter what I do today, these parties appear to be intent on waging more bitter litigation.

[2] Very broadly, I am dealing with two motions, both commenced by the Respondent father, in relation to the parties’ three children ages 12, nine and five.

a. A “travel” motion which the parties were ultimately able to resolve without an order being required.

b. An “exchanges” motion which the parties were able to resolve by way of Minutes of Settlement which came to be incorporated in the February 22, 2023 order of Justice Edwards.

[3] Both parties are claiming costs:

a. The Applicant seeks $2,431.82 on the “travel” motion (noting that “full indemnity” would be closer to $3,243.00); and $2,373.00 on the “exchanges” motion (noting that “full indemnity” would be closer to $3,164.00).

b. The Respondent basically seeks $2,500.00 costs for each motion, for a total of $5,000.00 (noting that “full indemnity” would be closer to $7,000.00).

[4] The obvious threshold problem is that while I have had some familiarity with this file historically – enough to fully understand that this is a high conflict file – I had nothing to do with the resolution of these particular motions.

[5] Where parties reach their own settlement, leaving only the issue of costs to be determined by the court, the analysis requires a cautious approach.

a. Costs may be awarded to a party even if a case settles, if the disposition of costs was not dealt with in the settlement document – or if the minutes of settlement specifically reserve the issue of costs to be determined as the only remaining issue. Talbot v. Talbot, 2016 ONSC 1351 (SCJ); DeSantis v. Hood, 2021 ONSC 5496 (SCJ).

b. However, where parties reach a pre-trial settlement, the court should exercise caution before making an award of costs. With settlements, there should generally be a compelling reason to justify costs. Davis v. Fell, 2016 ONCJ 84 (OCJ); Muncan v. Muncan, 2021 ONSC 1369 (SCJ); Krueger v. Krueger, 2017 ONSC 1446 (SCJ); Frape v. Mastrokalos, 2017 ONCJ 915 (OCJ); Witherspoon v. Witherspoon, 2015 ONSC 6378 (SCJ); Cummings v. Cummings, 2022 ONSC 5657 (SCJ).

[6] The fundamental concern relates to the sufficiency of the evidence required for the court to make relevant findings.

a. Minutes of Settlement typically entail a global resolution of multiple issues. Settlements often involve unknown compromises and concessions, making it difficult for the court to apply Rule 24 factors.

b. Where there has been no adjudication on the merits, a judge receiving minutes of settlement often lacks sufficient information to conduct a proper costs analysis, and to apply the touchstone considerations of reasonableness and proportionality. Ball v. Ball, 2014 ONSC 5754 (SCJ); DeSantis v. Hood, 2021 ONSC 5496 (SCJ); Goetschel v. Goetschel, 2022 ONSC 5860 (SCJ).

c. Just as a judge dealing with unresolved substantive issues requires admissible and relevant evidence, a judge dealing with a post-settlement costs issue also requires admissible evidence relevant to the factors relating to costs. Talbot v. Talbot, 2016 ONSC 1351 (SCJ); Cummings v. Cummings, 2022 ONSC 5657 (SCJ).

d. If parties place the issue of costs before the court on consent, it is incumbent on them to provide the judge with sufficient information about the case to enable a proper determination. Gibeau v. Parker and Rivard, 2017 ONSC 545 (SCJ); Parkinson v. Parkinson, 2019 ONSC 7001 (SCJ).

e. Where parties settle some issues but proceed to trial on others, the evidence heard by the trial judge may provide sufficient contextual information to enable an overall determination of costs on an overall, global basis. Beardsley v. Horvath, 2022 ONSC 3430 (SCJ); Wallegham v. Spigelski, 2015 ONSC 8066 (SCJ); Lazare v. Heitner, 2018 ONSC 4861 (SCJ); Proulx v. Proulx, 2021 ONSC 6071 (SCJ).

[7] Consideration of success is generally the starting point in a costs analysis, and Rule 24(1) creates a presumption of costs in favour of the successful party.

a. But a judge who only knows how the case was concluded – without knowing how the case was litigated -- may have difficulty getting clear sense of who “won”, who “lost”, and the extent to which the negotiated settlement reflects divided success. Hmoudou v. Semlali, 2020 ONSC 1330 (SCJ); Moreno v. Tuey, 2019 ONCJ 418 (OCJ).

b. Courts are generally reluctant to go behind freely negotiated terms of settlement and to engage in an exercise to try to determine which party’s position on each issue would have been accepted by the trial judge had the matter proceeded to trial. O'Brien v. O'Brien, [2009] O.J. No. 5019, 2009 CarswellOnt 7194 (SCJ); Gzechowski v. Percy, 2011 ONCJ 644 (OCJ); Benoit v. Kerr, 2014 CarswellOnt 12838 (SCJ); Upton v. Harris, 2016 CarswellOnt 6721 (SCJ); Moreno v. Tuey, 2019 ONCJ 418 (OCJ).

c. On the other hand, in some cases, the judge receiving minutes of settlement will also receive enough information to enable the court to conduct a thorough costs analysis. For example, there may be cases in which a settlement is a “clear capitulation” by one party in favour of the other. If a party brings a motion asking to change almost everything, and at the last minute signs a Consent which changes almost nothing, how can they possibly argue that a judge will have a hard time figuring out who was successful? Scipione v. Del Sordo, 2015 ONSC 5982 (SCJ).

[8] While caution is required, a blanket refusal to award costs in settled matters may have unintended – and undesirable – consequences for both the parties and the administration of justice.

a. Our family court system consistently encourages parties to settle their cases, to avoid costs. So we must be careful not to undermine our messaging in case management, by imposing post-settlement costs orders which may inadvertently eliminate an incentive to settle. Moreno v. Tuey, 2019 ONCJ 418 (OCJ). If litigants do what we urge them to do – reach their own negotiated settlement – the court should carefully assess whether compelling reasons remain to award costs. Shute v. Shute, 2017 ONCJ 533 (OCJ).

b. But equally, costs should not be a barrier to settlement. Sometimes after protracted litigation the parties can agree on everything except costs. It is in neither the parties’ nor the court’s interest to waste an opportunity to resolve substantive issues. Litigants should not be forced to go to trial and achieve success in order to recover disputed costs. Parties should have confidence that if they settle all other issues, any residual costs claim will be given fair consideration by the court, on the merits. Wunsch v. Wunsch, 2013 ONSC 5208 (SCJ); Hassan v. Hassan, 2019 ONSC 1199 (SCJ).

c. A successful party who has behaved reasonably should not be precluded from pursuing their costs, simply because their opponent waited until the last moment to abandon a meritless or unreasonable position. Atkinson v. Houpt, 2017 ONCJ 316; Moreno v. Tuey, 2019 ONCJ 418 (OCJ).

d. If a party eventually makes a good litigation choice by signing Minutes, that epiphany doesn't automatically wipe out any history of bad litigation choices which would otherwise justify costs. Settling in the face of the inevitable may be little more than damage control. Scipione v. Del Sordo, 2015 ONSC 5982 (SCJ).

e. While there may be public policy reasons against costs orders in the face of negotiated resolutions, there are also public policy reasons to hold parties liable for needless expense they created during whatever period they maintained an unreasonable position. Horowitz v. Duthie, 2021 ONSC 7902 (SCJ).

[9] During submissions, I expressed concern to counsel about the sufficiency of the evidence, and whether the court is in a position to make the necessary Rule 24 determinations.

[10] Counsel conferred and then returned agreeing that they would ask me to make a costs determination on the “travel” motion, and adjourn the remaining costs claims to be dealt with along with the remaining substantive issues which are currently scheduled for a combined Settlement Conference/Trial Scheduling Conference on June 7, 2023.

[11] With respect, counsel’s late-in-the-day request for a partial adjournment is my least favourite option.

[12] If counsel failed to argue costs when Justice Edwards granted his February 22, 2023 order, and if they wanted to adjourn costs to the trial judge, they should have made that commitment at the time. Instead, they booked this long motion for relatively small costs claims. Having scheduled the motion, they must assume responsibility to use court time efficiently. This was their opportunity to present their best case, respectively, knowing that judges dealing with costs claims in settled matters require an evidentiary foundation for their decision.

[13] For the most part, neither party has provided sufficient evidence – and sufficient clarity – to allow the court to make the necessary determinations about how it was that the parties ended up raising and then settling all of these issues. If they didn’t provide the necessary evidence for the motion they booked, they should not be allowed to try again at a subsequent court event.

[14] There is one exception however. The Respondent’s materials satisfy me that there was a significant problem in relation to the unhelpful meddling of the mother’s partner with respect to parenting issues; a need to prohibit video and audio recordings; and the need to ensure that the three children are not left unsupervised. The Respondent father brought a motion to deal with these important issues, and he was successful in obtaining an order to address inappropriate behaviour which jeopardized the best interests of the children.

[15] The Applicant shall pay to the Respondent costs fixed in the sum of $1,500.00 (inclusive of HST and disbursements) on those issues. All other costs claims are dismissed.

Pazaratz J Date: April 25, 2023