Court File and Parties

Court File No.: D56732/12 Date: 2012-09-25

Ontario Court of Justice Toronto North Family Court

Between:

A.A.B. Acting in person APPLICANT

- and -

A.P.J. RESPONDENT

Counsel: Lisa Evans, counsel for the Respondent

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

Part One - Introduction

[1] On August 30, 2012 I released my decision granting the respondent (the father) temporary custody of the parties' child, structuring temporary access for the applicant (the mother) and transferring the case, at the father's request to the Ontario Court of Justice in Peel. I gave the father the opportunity to make written costs submissions and gave the mother the opportunity to make written reply.

[2] The father served and filed written costs submissions. He seeks full indemnity costs of $5,798.43. The mother did not make any submissions.

Part Two – Bad Faith

[3] The father seeks a finding that the mother acted in bad faith. Sub-rule 24(8) of the Family Law Rules (the rules) states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[4] The father argues that the mother acted in bad faith by concocting abuse allegations for her financial advantage. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. S.(C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. S.C). While I found that the mother had not proved her allegations against the father on a balance of probabilities and expressed concerns about the reliability of her evidence, I did not find that the mother had manufactured her allegations for financial advantage. I am also mindful that we are at an early stage of this case and that the allegations made by both parties need to be further investigated. The mother's behaviour on this motion did not rise to the level of bad faith.

Part Three – Analysis

[5] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.) stated that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[6] Subrule 24(1) of the rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ- Family Court). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ). The position each party took at the hearing of the motions should also be examined.

[7] Neither party made an offer to settle the motion.

[8] The father was the successful party, based on the positions the parties took on the hearing of the motions. The mother asked that the father only be given supervised access to the child. Instead, he was awarded temporary custody of the child. The mother opposed the father's request to transfer the case to Peel – the case was transferred.

[9] In making this decision, I considered the factors set out in sub-rule 24(11) of the rules, which reads as follows:

24(11) 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 behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, 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.

[10] The case was important for the parties. It was not complex or difficult.

[11] Sub-rule 24(5) of the rules provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24(11)(b) above). It reads as follows:

DECISION ON REASONABLENESS

24(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.

[12] The parties were both unreasonable in their failure to make an offer to settle the motions. Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. The failure to serve an offer to settle will be an adverse factor when assessing costs. See: Laing v. Mahmoud, 2011 ONSC 6737. It will be the rare case where full indemnity costs will be ordered when the court finds that an offer to settle should have been made.

[13] I also found in my decision that the mother had acted unreasonably by misrepresenting the parties' parenting arrangement to the court prior to the issuance of her application. This case should not have been started in Toronto.

[14] The father will be awarded costs on a partial indemnity basis.

[15] I have reviewed the rates submitted by counsel for the father. They are reasonable. The father had to respond to multiple allegations and obtain evidence from the Peel Children's Aid Society.

[16] I have also reviewed the time spent on the motions submitted by counsel for the father. The time spent by counsel on the motions was reasonable.

[17] The expenses claimed by the father on the motions are reasonable.

[18] I find that the mother has the ability to pay this costs award. I will give her 60 days to make this payment.

[19] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] O.J.No. 2634 (Ont. C.A.) and Delellis v. Delellis and Delellis, [2005] O.J. No. 4345. Both these cases point out that when assessing costs it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs....Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

[20] Taking into account all of these factors, an order shall go as follows:

Order

The mother shall pay the father his costs of this motion fixed in the sum of $4,500, inclusive of fees, disbursements and HST, payable within 60 days.

Justice S.B. Sherr

Released: September 25, 2012