Court File and Parties
Court File No.: D71110/14 Date: July 23, 2015
Ontario Court of Justice
Re: Nadine McKoy - Applicant And: Wayne George McKoy - Respondent
Before: Justice Roselyn Zisman
Counsel: Brian Hall, for the Applicant Pauline Malcolm, for the Respondent
Heard: By written submissions
Endorsement
Background
[1] This is my decision with respect to the issue of costs relating to a temporary motion heard on April 9, 2015, with the decision released on May 11, 2015.
[2] The issues on the motion related to a request by the Respondent ("father") for expanded access to the children, Amaya Marley McKoy ("Amaya"), born October 31, 2009, and Taj Marshall McKoy ("Taj"), born August 18, 2012, to include overnight access and some ancillary orders regarding parenting. The mother sought a continuation of the current order. The mother also sought an order that she be permitted to change Amaya's current counsellor.
[3] In my decision I granted the father alternate week-end access from Friday after school to Sunday at 4:00 p.m., and every Wednesday from after school to Thursday morning return to school or daycare. There were ancillary orders prohibiting the mother from scheduling any extra-curricular activities during the father's access except as agreed upon and telephone access.
[4] The mother's Notice of Motion to change counsellors did have an affidavit attached but only a brochure from the new counselling service she was proposing and although there was some reference to the reason for change in her responding affidavit to the father's motion this in not the proper manner for preparation of a motion. In any event, I also ordered that the mother not be permitted to change Amaya's counsellor and made specific orders regarding transportation and scheduling of the counselling.
Position of the Parties
[5] The father seeks full recovery of his costs of $8,220.31 inclusive of applicable taxes and disbursements on the basis that:
a) the father was successful on the motion;
b) the court documents were voluminous and diverse;
c) the legal issues were unique and required in-depth research and analysis;
d) the mother acted unreasonably in not accepting the father's Offer to Settle; and
e) the issues raised were the same issues raised at two prior case conferences and the mother refused to settle or address the issues at those conferences which made the motion necessary.
[6] It is the mother's position that there should be no order of costs on the basis that:
a) The mother acted reasonably in resisting overnight access at this time due to her genuine belief that such access was not in the children's best interests in view of both children's difficulties with the separation, the fact that Amaya suffers from Russell Silver Syndrome and Taj was having sleep difficulties; and
b) The father has not acted reasonably as during the motion it was submitted on his behalf that he would be responsible for the cost of counselling and he has not paid those costs.
Offer to Settle
[7] On April 7, 2015, the father's counsel served the mother's counsel with an offer to settle. On the most contentious issue, overnight access, the father offered interim access on alternate overnight access from Saturday at 10:00 a.m. to Sunday at 4:00 p.m. The remainder of the offer dealt with telephone access and the issue of extra-curricular activities. The Offer to Settle did not address the issue of the change of counsellors.
[8] The father was the successful party and the results obtained in court were more favourable to him, on the issue of overnight access, than the offer to settle he made the mother. His offer to settle also mirrored most of the ancillary orders made. He was also successful on the issue of the mother's motion as she was not permitted to change Amaya's counsellor.
Applicable Legal Principles
[9] Rule 24(1) of the Family Law Rules provides guidance on costs on a family law context. Rule 24 (1) sets out the basic assumption that a successful party is entitled to costs. This provision still permits a court broad discretion in determining if costs should be paid, by whom and in what amount.
[10] Rule 24 (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.
[11] 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:
to partially indemnify successful litigants for the cost of litigation;
to encourage settlement; and
to discourage and sanction inappropriate behavior by litigants.
[12] I also agree with the comments by Justice Perkins in Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.) that:
the preferable approach in family law cases is to have cost recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.
[13] I am also mindful that 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 (Ont. C.A.), 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 rather than an exact measure of actual costs to the successful litigant.
[14] Subsection (b) of Family Law Rule 24(11) relates to the reasonableness of each party's behavior in a case.
[15] In considering if a party acted reasonably, Family Law Rule 24 (5) directs the court to consider if a party served made an offer to settle and the reasonableness of any offer to settle.
[16] Rule 24 (5) provides that:
(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.
[17] Offers to settle are an essential part of family litigation. The parties and counsel have a positive obligation to conduct their cases to ensure that the primary objective of the Family Law Rule 2 (2) is met that is, to deal with cases justly. This includes taking appropriate steps to save time and expenses, per Rule 2 (3). Offers to settle play an integral role in saving time and expenses by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs. In my view it is unreasonable behavior for a party not to make an offer to settle.[1]
[18] The consequences of an offer to settle are set out in Family Law Rules 18(14) as follows:
(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:
If the offer relates to a motion, it is made at least one day before the motion date.
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.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
Application of Legal Principles to the Facts
[19] In this case the father's offer to settle meets all of these conditions and he is therefore entitled to his costs from the date the offer was served and on a full recover basis from that date. He was also successful in disputing the mother's motion regarding changing the counsellor.
[20] In determining the amount of costs, I have considered the legal principles and the following factors as set out in Rule 24 (11) as follows:
a) the importance, complexity or difficulty of the issues: Both counsel have submitted the issues were complex and of vital importance as it affected the children's best interests. Although on the surface the motion only related to overnight access, a detailed analysis was required as to the impact of overnight access on the children's emotional, medical and physical needs and the ability of the father to satisfy those needs. Due to Amaya's special needs, and the allegation that Taj had emerging issues, there was medical evidence that needed to be presented and reviewed together with supporting affidavits filed by both parties. The issue of a change of Amaya's counsellor was also important in view of the relationship she has established with her therapist and Amaya's need for structure, consistency and stability.
b) the reasonableness or unreasonableness of each party's behavior in the case: The father made an offer to settle and the mother did not respond or make a counter offer. I find that in failing to do so she acted unreasonably. I agree that the mother acted sincerely and not out of malice in her belief that overnight access should be delayed. However, in the costs submissions filed on her behalf, counsel spent two pages essentially rearguing the issues of why overnight access was not appropriate. After a year of limited day access, the father's position to expand access was reasonable. The mother, as indicated, should have attempted to negotiate a solution instead of requiring the father to bring a motion especially in light of the recent medical reports that did not support any significant concerns with the children that would have supported father's access being restricted. I do not agree that the issue of payment of the counsellor's fees, that occurred after this motion was argued, is a factor that should be considered with respect to costs. Mother's counsel points out that this issue will be raised on the next court attendance if the parties cannot resolve the issue.
c) the lawyer's rates: Ms. Malcolm was called to the bar in 1999 and her hourly rate of $300 is reasonable. No issue was raised by mother's counsel with respect to her hourly rate.
d) the time properly spent: Both parties filed extensive materials including their own affidavits and affidavits from friends supporting their positions. Attached to the mother's materials were six medical reports, reports from occupational therapists and school reports. Attached to both parties' affidavits were copies of various correspondence between themselves. In addition, father's counsel filed a factum and brief of authorities. Father's counsel has attached a detailed Bill of Costs restricted to meeting with her client, correspondence to counsel for the mother, obtaining information to prepare the materials, preparation of the affidavits, research and attendance on the motion. In view of the amount of materials filed on this motion and the importance the issue to her client, I find that the time spent, namely 19 hours in total, was reasonable.
e) the expenses properly paid and payable: The usual disbursements are claimed and total $263.98.
f) any other relevant matter: There are no unusual circumstances in this case that would warrant circumventing the usual rule that the successful party is entitled to costs and that in view of the offer to settle that costs should be at a full recovery basis. Just because the mother believed in her position, is not a reason to deprive the father who was totally successful on these motions of his costs. The mother is employed and earns over $90,000 and has the financial means to pay the order.
[21] In considering all of these factors, I find that the fair and reasonable amount of costs is at a rate of full recovery. I see no reason that the amount claimed by the father should be reduced as he was completely successful and the amount claimed is very reasonable based on all of the factors outlined.
Order
[22] Order as follows:
- The Applicant shall pay to the Respondent his costs fixed at $8,220.00 within 60 days.
Justice R. Zisman
DATE: July 23, 2015
[1] J.V.M. v. F.D.P. 2011 ONCJ 616; Menchella v. Manchella 2013 ONSC 367; Clarke and Collymore [2013] O.J. No. 4138 (OCJ)