Court File and Parties

Court File No.: D49677/09 Date: 2013-09-04

Ontario Court of Justice

Toronto North Family Court

Between:

Floyd Collin Michael Gurley Applicant

- and -

Brenda Gurley Respondent

Counsel:

• Evan Chang, for the Applicant
• Darnette Reid, for the Respondent

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

[1] The trial about custody and access of the parties' three children was heard on August 14th and August 15th, 2013.

[2] At the conclusion of the trial I gave oral reasons for decision. I granted custody of the children to the applicant (the father) and extensive, specified access to the respondent (the mother), including three out of four weekends and an equal division of holidays.

[3] The father has made written costs submissions. He seeks his full recovery costs from June 29, 2012 of $5,186.60. The mother also made written costs submissions. She asks that no costs be ordered.

Legal Framework for Costs

[4] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 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.

[5] Subrule 24(1) of the Family Law Rules (the rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe. 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. See: Lawson v. Lawson.

[6] Subrule 18(4) of the rules sets out that an offer shall be signed personally by the party making it and also by the party's lawyer.

[7] Subrule 18(14) of the rules reads as follows:

Costs Consequences of Failure to Accept Offer

18(14) 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.

Analysis of Offers to Settle

[8] The father relied on two offers to settle. The first, dated March 18, 2011, was in the form of a letter sent by the father's counsel to the mother. The father did not sign this offer as required by subrule 18(4) of the rules. Accordingly, subrule 18(14) of the rules does not apply to this offer.

[9] The father did sign the second offer, dated July 31, 2012. This offer is almost identical to the final order in its major elements (custody, parenting time). However, the final result was not as favourable as or more favourable as the offer. The offer included incidents of custody that were not included in the final order, including a term that the father could apply for the children's identification, including passports, without the mother's consent, and a term that the mother not expose the children to smoke or marijuana use. Close does not count when applying subrule 18(14). Its presumptive costs consequences were not triggered by this offer.

[10] However, an offer to settle that is very close to the final result will be a very relevant costs consideration under subrule 18(16) of the rules. This subrule reads as follows:

Costs — Discretion of Court

18(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 (14) does not apply.

Factors in Determining Costs

[11] 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.

Application of Factors

[12] Both parties sought sole custody of the children at trial. The father proposed access for the mother that was comparable to the final order. The mother proposed that the father have access on alternate weekends.

[13] The father was the successful party.

[14] The mother did not rebut the presumption in subrule 24(1) of the rules that the successful party is entitled to costs.

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

[16] The father acted reasonably throughout the case.

[17] The mother did not submit an offer to settle. The failure to make an offer to settle is unreasonable behaviour. Sub-rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (subrule 2(2)). This includes taking appropriate steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute (See my comments in Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774). The failure to serve an offer to settle will be an adverse factor when assessing costs. Laing v. Mahmoud, 2011 ONSC 6737.

[18] The position taken by the mother at trial was reasonable, particularly since it was supported by the Office of the Children's Lawyer.

[19] The rates claimed by the father's lawyer were very reasonable. He claimed costs at a legal aid rate, even though he had the right to claim costs at his private retainer rate. See: Ramcharitar v. Ramcharitar at paragraph 25 and Alvarez v. Smith at paragraphs 17-19.

Time and Disbursements

[20] Subrule 24(10) sets out that costs are to be determined in a summary manner after each step in the case by the presiding judge. A "step" in the case is one of the discrete stages recognized by the rules such as a case conference, settlement conference and the like. See: Husein v. Chatoor, 2005 ONCJ 487. The trial judge should not deal with requests for costs that were addressed or should have been addressed at these prior steps in the case. See: Islam v. Rahman, 2007 ONCA 622.

[21] The father claimed time for preparation and attendance at two case conferences. At the second conference the parties reached an agreement for shared summer access. No costs were awarded for these steps. It is not appropriate to claim them now.

[22] The mother objected to the father claiming costs for meeting with the Office of the Children's Lawyer and reviewing their findings. This is time that is only partially attributable to the prior case conferences – it is also time partially attributable to the trial step and the father should receive partial compensation for it. See: Czirjak v. Iskandar, 2010 ONSC 3778 and my comments in Kardaras v. Kardaras, 2008 ONCJ 616.

[23] The time claimed for preparation and attendance at trial by the father was reasonable.

[24] I disallowed $117 of disbursements claimed by the father for filing previous case conference briefs. The other disbursements claimed by the father were reasonable and will be allowed.

Proportionality and Fairness

[25] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. 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.

Ability to Pay

[26] I considered the respondent's ability to pay the costs order. See: MacDonald v. Magel. A party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs: Snih v. Snih pars. 7-13. The mother claims to have little ability to pay costs. However, after a support trial, Justice Geraldine Waldman found that the mother was earning far more income than she claimed and imputed income to her of $38,000 per annum. I find that she has the ability to pay the amount that will be awarded for costs.

Costs Award

[27] Taking into account all of these considerations, an order shall go that the mother shall pay the father's costs fixed in the amount of $3,600, inclusive of fees, disbursements and HST.

[28] The mother shall be permitted to repay the arrears at the rate of $150 per month, starting on October 1, 2013. However, if she is more than 30 days late in making any payment, the entire amount remaining owing shall immediately become due and payable.

Family Responsibility Office and Further Proceedings

[29] The father asked that the costs award be enforceable as support by the Family Responsibility Office due to the mother's poor history of paying prior costs and support orders. However, the only issues before the court were about parenting, so it is not appropriate to make such an order – these orders are to be limited to cases where support is in issue. See: Clause 1(1)(g) (definition of support order) of the Family Responsibility and Support Enforcement Act; Sordi v. Sordi, 2011 ONCA 665.

[30] It is appropriate, given the mother's poor payment history of the court's prior costs and support orders, to make an order that the mother cannot bring any further court proceedings without prior leave of the court, unless she can demonstrate that she is in compliance with this costs order.

Justice S.B. Sherr

Released: September 4, 2013