Court File and Parties

Court File No.: 482/10 Date: 2012-06-05

Ontario Court of Justice

Re: Zoltan Benko and Judith Torok

Before: Justice Roselyn Zisman

Counsel:

• Ann L. Stoner – for the Applicant
• Judith Torok – self-represented

COSTS ENDORSEMENT

1. INTRODUCTION

[1] Both the Applicant ("father") and the Respondent ("mother") claim costs for several motions that as the case management judge I have dealt with but for various reasons costs were reserved. It should also be noted that the mother was represented by counsel until March 8, 2012 however, counsel did assist the mother in the preparation of the cost submissions.

2. BACKGROUND

[2] In order to understand the context of the costs submissions it is necessary to briefly review the history of this matter.

[3] The parties are the biological parents of the child, Lyonell Alexander Torok born on […], 2010 ("the child"). The child has resided since birth with the mother. The mother and the child have resided with Alex Torok, who is the mother's ex-husband since December 2009.

[4] The father commenced an application for joint custody and primary residence of the child to himself. The father also added as a party, Alex Torok and sought a restraining order against him.

[5] At the initial case conference the parties consenting to an order of supervised access at a supervised access centre for the father. At a subsequent attendance, counsel for Alex Torok was granted leave to bring a motion to remove Mr. Torok as a party and dates for the exchange of materials were set. A date was also set for a contested motion regarding temporary custody and access.

[6] On the return date of July 11, 2011, counsel for Mr. Torok advised that he was not proceeding with a motion to remove Mr. Torok as a party. On consent, an order was made for the appointment of the Office of the Children's Lawyer, disclosure of police and hospital records. The parties did not agree on the terms of the father's ongoing access. The father sought unsupervised access every Tuesday and Thursday for several hours, every Saturday or Sunday from 10:00 a.m. to 5:00 p.m. and then after four weeks to expand access to overnight access. The mother sought a continuation of supervised access.

[7] After hearing oral submissions and reviewing the affidavit materials filed, including the reports of the supervised access centre, I was satisfied that there were no safety concerns that would require ongoing supervised access and that the father had acquired the necessary experience and skills to meet the physical needs of the child. However, in view of the child's age and the relatively brief time that the father had been involved in the care of the child, I was not prepared to order access to be overnight. Accordingly, the father was granted the weekday access he requested on Tuesdays and Thursdays for two hours, access on alternate Saturdays or Sundays for four hours. There were additional terms regarding who could be present and for the location of pick up and drop. Costs were reserved.

[8] The proceeding was adjourned to August 31, 2011 either to be spoken to (if the Office of the Children's Lawyer agreed to accept the referral) or for a further access motion and both parties were given leave to file further materials.

[9] On the return date, a decision had not yet been received from the Office of the Children's Lawyer. The mother raised concerns about the father's contact with the child and sought supervised access to be re-instated. The father again sought overnight access. He had been unable to exercise mid-week access, as previously ordered, as he had not been able to arrange his employment schedule and therefore was no longer seeking mid-week access. After reviewing the further affidavits filed and hearing oral submissions, I was not satisfied that the concerns raised by the mother required supervised access be re-instated but I was also not satisfied that the father's access should be expanded to overnight access. The order of July 11, 2011 was varied so that the father's access would be every Saturday from 9:00 a.m. to 6:00 p.m. This order was made without prejudice to the father's right to renew his request for overnight access or holiday access, if the Office of the Children's Lawyer was not involved. Costs were again reserved.

[10] Further on August 31, 2011, counsel for Mr. Torok brought a motion to remove him as a party. Although that motion was not scheduled to be heard that day and counsel had previously advised the court and the parties that he was not proceeding with the motion, all parties consented to the removal of Mr. Torok as a party.

[11] The Office of the Children's Lawyer did agree to accept the case and a report was filed with the court on December 16, 2011. The clinical investigator recommended not only overnight access to the father but a parenting plan that would quite quickly evolve into a shared parenting plan with the child residing in the equal shared care of both parents.

[12] A motion date was set for January 26, 2012 for the father's motion for expanded access generally in accordance with the schedule recommended by the Office of the Children's Lawyer although on a more gradual basis. After reviewing the affidavits filed and hearing oral submissions I reserved my decision.

[13] On January 26, 2012 the mother also brought a motion for various items of disclosure and for permission to leave the jurisdiction with the child to visit her ill mother in Hungary. As counsel for the father had not had sufficient notice of the mother's motion, the motion for the removal was adjourned to February 3, 2012. On February 3, 2012, the father consented to the mother travelling with the child to Hungary and the mother's motion for the release of the father's medical records was adjourned to April 3, 2012.

[14] On March 21, 2012, I released my decision dismissing the father's motion to expand his access to overnight access. I held that as the mother had been successful on the motion she was presumed to be entitled to costs and set a timetable for the filing of written submissions. I also endorsed that in reviewing the file, I noted that costs had been reserved on several of the prior court attendances and that if either counsel was seeking costs for those attendances those costs should also be addressed.

[15] On April 3, 2012 the mother's motion for disclosure of the father's medical records was before the court. By this time the mother was self represented and was not able to proceed on her own to argue the motion that was opposed by father's counsel. The motion was adjourned to be dealt with by the trial judge. Father's counsel sought costs of the wasted attendance which I held could be set off against any costs the mother was entitled to.

3. POSITION OF THE RESPONDENT MOTHER

[16] The mother seeks costs, on a full recovery basis including disbursements and applicable taxes, of $6,356.25 for both the motion of January 26, 2012 and the motion of August 31, 2011 in respect of Mr. Torok being removed as a party.

[17] On behalf of the mother it is submitted that, despite her concerns about the father, she has acted reasonably throughout the proceedings and had complied with all court orders; whereas it is submitted the father did not act reasonably by adding Mr. Torok as a party to the proceedings and by pushing his agenda for expanded and overnight access with little concern about the timing or impact this would have on the child. It is submitted the father has unnecessarily complicated and lengthened the proceedings. The mother was required to participate in the motion that had to be brought to remove Mr. Torok as a party before the father then consented to his removal. It is submitted that the father has also made unfounded allegations against the mother and Mr. Torok, instigated investigations by the children's aid society and made complaints against the family doctor. None of his complaints have been validated. However, it is submitted that all of these steps have increased the mother's legal expenses, delayed the proceedings and detracted from the central focus in the case being the best interests of the child.

[18] It is submitted that the mother made an offer to settle, prior to the motion on January 26, 2012, that would have provided the father with access every other Saturday and Sunday from 10:00 a.m. to 6:00 p.m. and every week on Tuesdays and Wednesdays from 5:00 to 7:00 p.m.

4. POSITION OF THE APPLICANT FATHER

[19] It is submitted on behalf on the father that the results of the motions were mixed and no costs should be ordered. But if the court was inclined to order any costs, then the father seeks costs for the mother's motion of January 26, 2012 in the amount of $3,000.00, his own motions of July 11 and August 31, 2011 of $3,000.00 and $1,500.00 and for the April 3, 2012 motion that did not proceed $1,000.00. Therefore a total of $8,500.00 is sought on a partial recovery basis inclusive of disbursements and applicable taxes.

[20] It is submitted that although the father was unsuccessful on his motion for expanded overnight access on January 26, 2012 he did attempt to settle by serving an offer to settle on January 9, 2012 which indicated a much more gradual increase in access than recommended by the Office of the Children's Lawyer and that he did not seek overnight access for eight weeks after the motion and asked for midweek access one evening a week from 5:00 p.m. to 8:00 p.m. It is submitted that although the mother did serve an offer to settle it was not served until January 20, 2012 and in any event offered less access than the father had under the existing order.

[21] It is also submitted that although the father had been granted leave to bring a motion for increased access on January 26, 2012, the mother was not granted leave to bring any motions and that counsel was taken by surprise when she brought the motion for disclosure or permission to travel to Hungary.

[22] It is also submitted that the mother is inexplicitly seeking costs for the August 31, 2011 motion with respect to Mr. Torok being removed as a party to the proceedings which motion was not properly before the court on that day and in any event was granted on consent.

[23] With respect to the father's motion heard on July 11, 2011 it is submitted that the father was successful in obtaining unsupervised access although not as much access as he was seeking and that his motion was adjourned to August 31, 2011 for a continuation and again costs were reserved. It is submitted that neither party exchanged any offers to settle for the July 11 or August 31, 2011 motions.

[24] The father is seeking costs for the wasted attendance on April 3, 2012 as counsel had inquired whether or not the motion would be proceeding and the mother left a message advising that she intended to proceed with her disclosure motion but then did not do so.

5. APPLICABLE LEGAL PRINCIPLES

[25] Subrule 24 of the Family Law Rules, O. Reg. 114/99 provides guidance on costs in a family law context. Subrule 24 (1) sets out the basic assumption that a successful party is entitled to costs.

[26] Subrule 24 (6) provides that if success in a step in a case is divided, the court can apportion costs as appropriate.

[27] Subrule 23 (11) provides a further list of factors a court should consider in dealing with costs:

A person setting the amount of costs shall consider,

a) the importance, complexity or difficulty of the issues;

b) the reasonableness or unreasonableness of each party's behavior in the case;

c) the lawyer's rates;

d) the time properly spent on the case, including conversations between the lawyer and the party, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

e) expenses properly paid or payable; and

f) any other relevant matter.

[28] Subrule 18(14) provides for the costs consequences of offers to settle are made as follows:

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.

[29] In other words, if the conditions set out in subrule 18(14) are met, there is a presumption not only that costs will be awarded but, as well, that those costs will be on a full recovery basis, from the date of the offer forward.

[30] Further subrule 18(16), which states:

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

[31] Subrule 24(7) is also applicable to these facts. That subrule provides that if a party is not properly prepared to deal with the issues at a step in the proceedings, the court shall order costs unless the court orders otherwise.

[32] In Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behavior by litigants.

[33] The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Counsel (Ontario) (2004), 2004 CarswellOnt 2521, [2004] O.J. No. 2634, the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings.

6. ANALYSIS

(i) Offers to Settle

[34] Both counsel served offers to settle with respect to the January 26, 2012 motion by the father to expand his access. In view of the importance to the parties of that motion pending the trial and the time and effect spent by both counsel on the preparation of affidavit materials, case law and their extensive oral argument, I commend them for their efforts. Although both offers to settle meet the procedural requirements of subrule 18(14), neither offer was as favourable as the order made by the court. The status quo access order was maintained whereas the mother's offer reduced the time somewhat but also tried to change the location of the exchange, an issue that was not even before the court and the father's offer substantially increased access. I do not agree with father's counsel that the mother's offer of mid-week access was "hollow" because she was aware that the father could not manage mid-week access. The father in his initially motion before the court asked for two mid-week visits and the times proposed by the mother met the child's needs and not the father's desire to have enough time to be able to drive to his home rather than exercising access in the mother's community. In my view both offers to settle reflected what each party felt was in the child's best interests pending a trial.

(ii) Costs of July 11, 2011 Motion

[35] With respect to costs that were reserved with respect to the father's initial motion on July 11, 2011, the father is seeking some costs. Although not clear from the submissions, assume this is based on the fact that he achieved some success, as he obtained an order of unsupervised access and the mother sought a continuation of supervised access. But as he sought expanded access to include overnight access, in my view success was divided and I would not order any costs of this motion to either party.

(iii) Costs of August 31, 2011 Motion

[36] With respect to the costs reserved with respect to the father's renewed motion for expanded access on August 31, 2011, the father seeks some costs and again I assume that this is based on his partial success in that the mother's motion on that date to revert to supervised access was dismissed but his own motion was also dismissed. I agree with father's counsel that there is no basis for the mother to seek costs for the motion by Mr. Torok's counsel to be removed as a party. That motion was resolved on consent and no counsel requested costs at the time nor were costs reserved with respect to that motion.

(iv) Costs of January 26, 2012 Motion

[37] With respect to the father's January 26, 2012 motion to expand his access to overnights, the mother was the successful party. Although it is correct that the mother brought other motions on that day, those motions were adjourned at the request of father's counsel and do not detract from the mother's success based on the fact that the father's motion was dismissed and that the temporary order continued. The mother is therefore entitled to her costs of that motion.

[38] I would point out that the mother's motion for permission to leave the jurisdiction was somewhat urgent as at the time her mother was quite ill and she wanted her son to see his grandmother in the event that her pending surgery was not successful. In the end result, that motion was adjourned and the father consented. Both counsel agreed that there be no costs.

(v) Costs of April 3, 2012 Attendance

[39] With respect to the mother's disclosure motion that was adjourned on April 3, 2012, I indicated to father's counsel that she was entitled to costs as the mother was not prepared and unable to argue the motion. Although I am sympathetic to the mother who was without counsel and it was clear that duty counsel could not assist her with such a motion without any knowledge of the background and content of the motion; nevertheless the mother should have advised father's counsel that she would adjourn the motion so that the father did not have to incur legal expenses for his counsel to attend.

(vi) Summary of Application of Applicable Law to the Facts

[40] I have considered the following factors in assessing costs payable to the mother with respect to the father's unsuccessful motion (January 26, 2012) to expand his access:

1. The mother was the successful party on that motion.

2. I find the mother acted reasonably in opposing the father's motion to implement overnight access in view of the detailed dispute she filed regarding the report of the Office of the Children's Lawyer and the flaws in that report. Further, this was the exact issue that will be determined by the trial judge. Although the mother has been cautious and concerned about the father's access, she has always abided by court ordered access and has conducted herself appropriately throughout the litigation. Although the father has been somewhat relentless in attempting to gain overnight access to be expanded to shared parenting, he has acting in what he believes is in the child's best interests and I cannot find that as a result he has acted unreasonably.

3. The motion was important to both parties. Both counsel were well prepared for the motion and clearly had spent considerable time and effort in researching the law and applying the law to the issues raised in the motion regarding the test to be met for a change in a temporary order pending trial and on the issue of overnight access for infants.

4. On the bill of costs presented by counsel for the mother, her hourly rate of $300.00 for counsel with 10 years experience is reasonable as are the charges for the disbursements.

5. I agree with father's counsel that the bill of costs is not precise in breaking down the 14.6 hours she allocated to both motions. For example, 8.8 hours is set out for the time spent preparing the originating documents, which should not be included, and further this time does not differentiate between time spent on drafting materials and meeting with her client and third parties for the motion on January 26 and August 31. However from a review of the materials, I can estimate that the pleadings would not have taken much time to draft and most of the time would have been spent drafting the affidavits used on the January 25th motion as it was the most contentious motion. But I note that only 2.8 hours was set out for preparation for the motion of January 26 including researching the law and preparation of the order and a flat rate of $600.00 was charged for her actual attendance on the motion. Nor was any time set out for the preparation of the bill of costs and submissions for costs, which were prepared as "agent" for the mother as counsel by then was removed as counsel of record. As a comparison, counsel for the father spent considerably more time for the work done with respect to these motions.

6. In my view a fair and reasonable amount of costs would be $5,000.00 inclusive of disbursements and applicable taxes.

7. The mother was not able to proceed with her motion for disclosure on April 3, 2012 and the father is entitled to his costs for the attendance as this was a wasted attendance that could have been avoided. I suspect that the mother thought that duty counsel might assist her with this motion as she was unrepresented and that is why she did not just adjourn it without father's counsel having to attend. The motion will be dealt with on its merits by the trial judge but I find that the mother should have to pay costs of $250.00 for that wasted attendance which amount is set off from the amount the father owes the mother.

7. ORDER

The Applicant, Zoltan Benko, will pay to the Respondent, Judith Torok, her costs of $4,750.00 forthwith.

Zisman J.

Date: June 5, 2012