Court File and Parties

Court File No.: D60998/13 Date: 2014-11-28

Ontario Court of Justice

Between:

Marie-Noelle Boudreault Applicant

- and -

Darryl Aimeson Charles Respondent (Acting in Person)

Counsel:

• Carolyn C. McNeill, for the Applicant
• Respondent Acting in Person

Heard: November 27, 2014

Justice: S.B. Sherr

Costs Endorsement

[1] On June 2, 2014, the court released its reasons granting the mother the temporary right to move with the parties' child to Montreal. See: Boudreault v. Charles, 2014 ONCJ 273.

[2] The court adjourned the temporary access issue on terms. The return of the access motion was argued and oral reasons for decision were delivered on November 27, 2014.[1] The father was granted temporary access to the child in Montreal every four weeks, on two consecutive days, with exchanges to take place at the Montreal Supervised Access Centre. The first four visits were ordered to be for two hours, the next four visits for four hours and then each visit after for six hours.

[3] The mother seeks full recovery costs of $14,749.16 for the motion. The father asks that no costs be payable.

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] Sub-rule 2(2) of the Family Law Rules (all rules references in this decision relate to these rules) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711.

[6] Subrule 24(1) 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. The position each party took on the motion should also be examined.

Failure to Make Settlement Offers

[7] Neither party made an offer to settle. This is disappointing, particularly when the parties were represented by counsel.[2] It is also unreasonable behaviour. The court repeats its comments made in paragraphs 4-5 of Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774 where it wrote:

4 It was surprising that there were no formal offers to settle in this case. It is reflective of the polarity of the parties. It should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute.

5 There are consequences in the rules for not making or accepting reasonable offers to settle. Subrule 18(14) sets out the costs consequences of not accepting an offer to settle that is as good as or better than the final result. When determining the reasonableness of a party's behaviour in the case, clauses 24(5)(b) and (c) of the rules direct the court to examine the reasonableness of any offer made, withdrawn or not accepted. This does not preclude the court from examining the failure of a party to make an offer to settle.

[8] The failure of the parties to make offers to settle means that the court must look at their respective positions on the motion to determine who was successful. The mother claims that she was the successful party. The father submits that success was divided, and that applying subrule 24(6), a no-costs order is appropriate.

Determination of Success

[9] The court finds that the mother was the successful party on the dominant issue on the motion. She was permitted to move with the child to Montreal. The parties had divided success on the access issue. The mother was initially successful in having access fully supervised as a term of the adjournment and she was successful in having visits take place in Montreal. However she was unsuccessful in her request for fully supervised access on the return of the motion. The father obtained an order for unsupervised access, with supervised exchanges.

[10] The father did not rebut the presumption that the mother is entitled to costs.

Factors in Determining Costs

[11] In making this decision, the court considered the factors set out in sub-rule 24(11), 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.

[12] The case was important for the parties. The issues were not complex or difficult.

[13] The failure of the mother and father to make an offer to settle was unreasonable behaviour. Otherwise, their behaviour was reasonable.

Legal Aid and Counsel Rates

[14] The father argued that since the mother is on legal aid, she should be limited to claiming costs at a legal aid rate. However, the case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar; Alvarez v. Smith.

[15] The rates claimed by counsel for the mother ($250 per hour) are very reasonable for a lawyer who was called to the Bar in 1989.

Scope of Costs Award

[16] 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. A 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. Costs accrued from activity not specifically related to the step (not requiring judicial intervention) should be dealt with at the end of the case and not by the motions judge. See: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98.

[17] A review of the mother's bill of costs indicates that time is claimed for activity not specifically related to this step, as well as for time spent on other steps in this case, including a case conference before Justice James Nevins.

[18] The expenses claimed by the mother on the motion ($737) are reasonable. The mother had to obtain third party records from the Catholic Children's Aid Society of Toronto to prepare for and argue this motion. This expense cost her $370.

Ability to Pay and Proportionality

[19] The court considered the father's ability to pay costs. See: MacDonald v. Magel. The father is of modest means. This order will permit the father to pay the costs in affordable instalments.

[20] The court also considered that mobility cases are challenging for everyone involved. By their very nature, an approved move will usually compromise a parent's relationship with his or her child. For this reason such cases are difficult to resolve and often need to be decided by the court. It is understandable for parents to contest such motions. See: Bridgeman v. Balfour, 2009 CarswellOnt 7214 (Ont. SCJ). In this case, only the first principle in Serra v. Serra (to partially indemnify successful litigants for the costs of litigation) applies.

[21] The court has 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.

Costs Order

[22] Taking into account all of these considerations, an order shall go that the father shall pay the mother's costs fixed in the amount of $6,000, inclusive of fees, disbursements and H.S.T. The father may repay these costs at the rate of $100 per month, starting on January 1, 2015. However, if he is more than 30 days late in making any instalment payment, the entire amount of the arrears shall immediately become due and payable.

Justice S.B. Sherr

Released: November 28, 2014

Footnotes

[1] The motion had previously been adjourned at the request of the father as he indicated that he wanted to retain new counsel.

[2] The father was represented by counsel for the main argument of the motion on May 27, 2014. The father subsequently filed a Notice of Change in Representation, to appear in court without a lawyer.