Court File and Parties

Ontario Court of Justice

Date: 2014-10-08

Sudbury File No.: D-167-09

Between:

MICHELLE FRAPPIER, Applicant

— AND —

JESSE DESAULNIER, Respondent

Before: Justice Randall W. Lalande

Judgment Released on: June 16, 2014

Ruling on Costs Released on: October 8, 2014

Counsel:

• Liisa Parisé, counsel for the applicant
• Christopher D. McInnis, counsel for the respondent

Ruling on Costs

JUSTICE R. W. LALANDE:

1: BACKGROUND

[1] The applicant, Michelle Frappier (the "mother") and the respondent, Jesse Desaulnier (the "father") are the biological parents of Joshua (age 7) born on August 3, 2007 and Samantha (age 5) born on May 7, 2009.

[2] The mother and father did not have a lengthy relationship. The mother has always been the primary caregiver of the children and the father has enjoyed regular access.

[3] An order was made by myself granting the mother sole custody of the children on November 30, 2009. The father was granted reasonable access upon reasonable notice including specific access every second weekend and every Wednesday from 4:30 p.m. to 7:00 p.m. The access on Wednesdays was not kept up but the father remained diligent in exercising access every second weekend. The order also contains other details and specifics regarding holidays.

[4] The order of November 30, 2009 is silent on the issue of the mother relocating or moving with the exception of paragraph 16 which states as follows:

The applicant mother shall provide the respondent father with 90 days written notice of her intention to relocate from the City of Greater Sudbury.

[5] The order also specifies in paragraph 3, in a more general sense, that the mother is required to advise and consult the father regarding all major decisions affecting the children but that she ultimately may make the final decision. The mother agrees that moving out of the province of Ontario would and does constitute a major decision.

[6] Approximately three years ago, the mother met and started dating Mr. Jesse Hayes. They began residing as a couple six months later. The relationship with Mr. Hayes appears to be stable. The mother and Mr. Hayes are the biological parents of one child namely Trevor Hayes, born April 17, 2013. Ms. Frappier is a stay-at-home mother looking after all three children.

[7] During the initial stages of his relationship with the mother, Jesse Hayes was a student. He graduated in April 2013 with a diploma in Mining Engineering Technology. He tried to secure employment in Ontario but was unsuccessful. In November 2013, he secured full-time employment with Sunhill Mining as a mining surveyor in the province of Alberta. He was hired with an entry salary of $61,800.00. He began working for the company in December 2013.

[8] On a number of occasions, the mother advised the father of her intention to move to the province of Alberta so that she and Mr. Hayes and the "three" children could continue living as a family unit. The father opposed the move in order to preserve the access regime he had been exercising.

[9] The mother brought a motion to vary the father's access. The father filed a response. The matter was heard by myself on June 11 and 13, 2014. Reasons for judgment were given on June 16, 2014. The mother's application to vary the father's access in order to accommodate her move to Alberta was allowed.

[10] The matter was then adjourned to July 7, 2014 to permit the mother and father to discuss an alternate scheme of access and to consider the issue of expenses anticipated to be incurred by the father in exercising access because of the distance involved.

[11] To their credit, the mother and father consented to fresh terms of access including a monthly reduction of $500.00 in child support payable by the father to compensate for travel costs. Details respecting the new terms of access and the adjustment in child support are set out in the new order made on July 7, 2014.

[12] Submissions were made by the mother and father on the issue of costs. The mother is seeking costs. She has provided a bill of costs. The father does not seek costs but opposes the mother's claim for costs.

2: POSITION OF MOTHER TAKEN ON COST ISSUE

[13] The mother highlighted the following factors:

• she has always been the primary caregiver to the children;
• she has provided a satisfactory level of care;
• she has made all necessary everyday decisions and she has respected the father's right to access;
• she was granted full custody on November 30, 2009. The custody order does not contemplate preventing her from moving. The order does speak to her providing the father with 90 days written notice of her intention to relocate; and
• absent securing the father's co-operation and in order to deal with his refusal to agree to necessary changes to access, she brought a motion to vary his access. She succeeded with the motion.

[14] The mother submits that the decision released on June 16, 2014 is clearly in her favour. As a successful party she is presumed to be entitled to costs.

[15] The mother provided a formal offer to settle under rule 18 of the Family Law Rules, O. Reg. 114/99, as amended. The offer was provided well before trial and only expired one minute following the commencement of the trial. In other words, the offer was available for acceptance any time prior to the commencement of the trial.

[16] The mother submits that the terms of the new final order made on July 7, 2014 fell into place because her motion to vary was allowed. According to the mother, the terms of the new order made on July 7, 2014 in large part mirror what she had offered (as reflected in the formal offer to settle).

[17] The mother also submitted that the cost of the trial has been devastating financially. In her submission, the father steadfastly maintained an unwillingness to meaningfully address the adjustment of his access and chose instead to litigate.

[18] The mother has provided a bill of costs. She seeks full recovery. The bill of costs as originally presented including disbursements and HST totalled $19,371.04. Ms. Parisé conceded that some of the work predated the offer to settle and related to the interim motion dealt with by Justice Keast (including costs). As such, she agreed on behalf of the mother to adjust the bill of costs to reflect a reduced amount of $15,839.77 including disbursements and HST.

3: POSITION OF THE FATHER TAKEN ON COST ISSUE

[19] The father argued that he had little option but to contest the case on the dominant issue of mobility. In his submission, this was the type of case where compromise was not really possible. There was no middle ground to be had. The children were either staying or moving away. In the father's words, this was the type of case that simply "did not cry out for a settlement".

[20] The father also submitted that it was very difficult, in the circumstances of this case, to measure "risk" in the context of costs. In his argument, he also factored in the concerns he had about the impact that such a significant change (moving to Alberta) may possibly have upon the children in terms of their relationship with him.

[21] The father submitted that the content of the offer to settle essentially repeated the relief sought in the mother's pleadings. This, according to the father, did not reflect a spirit of compromise. To the contrary, and from his viewpoint, the mother was determined to move and was only marginally concerned with the interruption that the move would have on his relationship with the children.

[22] According to the father, details associated with the mother's determination to move evolved as the litigation progressed. This made the attainment of any resolution very difficult.

[23] The father stated that, in some respects, the terms of the new final order (negotiated after the decision on mobility was made) are more favourable than the terms set out in the offer to settle. An example of this would be the duration of summer access. The offer to settle referred to four weeks access during the summer in one block every year. The final order refers to a fixed period each year starting July 4th and ending August 19th, 2014. The father also mentioned a few other examples, details of which shall not be repeated for purposes of these reasons, where he felt that the terms of the new final order were more favourable than the terms set out in the offer to settle.

[24] In the father's analysis, the first five entries in the bill of costs should have been attributable to earlier work related to the interim motion period. Justice Keast dealt with that motion and denied costs on March 24, 2014. The father took no issue with that portion of the bill of costs post-April 23, 2014. Hence, according to the father's calculation, the total amount reflected in the bill of costs should be adjusted to $12,207.00 plus disbursements and HST.

[25] The father recognized that it was reasonable for the mother to seek costs but because of the overall nature of the case, is asking that costs be denied or in the alternative be awarded on a modest partial indemnity basis.

4: ANALYSIS

[26] As discussed in Fong v. Chan, 46 O.R. (3d) 330, modern cost rules reflect a variety of purposes:

1. Indemnity.
2. Controlling behaviour by discouraging frivolous suits or meritorious defences.
3. Promoting and encouraging settlements.

[27] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, it was confirmed that modern cost 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.

[28] The Supreme Court of Canada, in the decision of British Columbia Minister of Forests v. Okanagan Indian Band, 2003 SCC 71, held that a cost order balances two conflicting principles, namely:

(a) A blameless litigant who is successful in a proceeding should not be required to bear the costs of prosecuting or defending the proceeding.

(b) Citizens should not be made to feel unduly hesitant to assert or defend their rights in court by the prospect that, if unsuccessful, they will be required to bear all the costs of their opponent.

In the above-noted decision, the Supreme Court of Canada stipulated that the ultimate objective in balancing these principles is to ensure that the justice system works fairly and efficiently.

[29] It should also be noted that the fixing of costs 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 of the case. The expectation of the parties concerning the amount of costs is also a relevant consideration.

[30] In some cases the court may be reluctant to grant costs, such as when a moving party is successful on a mobility case, but has put the other party in the position of having little option but to contest the case. It goes without saying that each case shall depend on its own facts.

[31] Offers to settle are the yardstick with which to measure success and are significant both in considering liability and quantum. See Osmar v. Osmar, 8 R.F.L. (5th) 387, at paragraph [15]. However, even if the terms of subrule 18(14) are followed, the court still has the discretion not to order full recovery of costs. See MacDonald v. Magel, 67 O.R. (3d) 181, at paragraph [43].

[32] Under subrule 24(1) of the Family Law Rules, there is a presumption that a successful party is entitled to the costs of a case except in child protection cases and in matters in which a governmental agency is involved. Under subrule 24(10), costs are to be determined and fixed at each step of the case.

[33] Having reviewed my reasons for judgment released June 16, 2014, and having heard the submissions of counsel made on July 7, 2014, I find the following factors to be important in considering the cost issue:

1. The mother's costs submissions and draft bill of costs are reasonable;
2. The father's cost submissions were reasonable;
3. Neither party behaved unreasonably at trial;
4. The mother did have success in regard to the dominant issue litigated, namely, that of mobility;
5. The mother has always been the primary caregiver. She was granted sole custody on November 30, 2009. She has made all decisions relevant to the care of the children and continues to do so;
6. The father is an involved access parent;
7. After the mobility issue was decided in favour of the mother, both the mother and father acted reasonably in successfully negotiating a resolution to other issues including access, the cost of transportation, and child support.
8. The mother's decision to move to Alberta was not ill-conceived. It is not a case where she placed all her eggs in one basket and simply hoped for the best. She made the decision responsibly and, in doing so, factored in all relevant circumstances, including the quality of employment secured by Mr. Hayes, available housing for herself and the children, the proximity of schooling to the area where she and Mr. Hayes planned to live, the cost of transportation to Mr. Desaulnier to exercise access, the importance of the relationship between the children and extended family on both sides and the benefit of an enhanced financial ability to look after the needs of the children.

[34] The father was resistant from the beginning. He displayed an absence of flexibility. He chose to oppose the idea of the mother's move, not so much because it lacked merit and common sense, but because he did not want his settled access regime to be interfered with.

[35] I must be cautious in dealing with the issue of costs to not recognize the mother as a "winner" and the father a "loser". On the other hand, I must recognize that the mother took reasonable steps to deal with the matter and to provide a reasonable offer to settle.

[36] The mother and father both acted responsibility throughout the litigation. They are both devoted parents. They had a meeting of the minds in order to resolve collateral issues on a go-forward basis. They are committed to the children and recognize what is in their best interests.

[37] The mobility issue was the dominant issue. The mother was successful in litigating that issue. The father was co-operative afterwards. On that basis, and in factoring in the offer to settle (not fully reflected in the final order made on July 7, 2014) the mother shall be entitled to recover costs on a partial indemnity basis. In settling the amount of costs to be awarded, I have considered the importance and difficulty in arriving at a decision on the dominant mobility issue as well as the reasonableness of the mother and father's behaviour. I have considered the draft bill of costs submitted by Ms. Parisé. In reviewing the draft bill of costs, I find that the hourly rate and total number of hours spent to be reasonable.

5: DECISION

[38] On a final determination, I have factored in the degree of success by the mother, the bill of costs, the reasonable approach taken by the father on collateral issues, the rules relating to a presumption favouring the successful party, and the need to be flexible by measuring the cost recovery against the backdrop of all relevant circumstances. Costs shall be awarded to the mother on a partial indemnity basis on the amount of $4,500.00 plus disbursements of $1,060.00 and HST.

[39] I thank counsel for their diligence and professionalism in arguing this matter.

Released: October 8, 2014

Signed: "Justice Randall W. Lalande"