Court File and Parties

Court File No.: D-528-12 EXT 01 Date: 2015-09-02 Ontario Court of Justice

In the Matter of the Children's Law Reform Act, R.S.O. 1990, c. C. 12

Between: Bruce Thrush, Applicant (Father)

R. Parise for the Applicant (Father)

— And —

Kayla Hiros, Respondent (Mother)

D. Berlinguette for the Respondent (Mother)

Heard: By written submissions

Before: Justice John Kukurin

Reasons for Decision on Costs

[1] These are my Reasons for my decision on a claim for costs relating to a step in this case, namely, the hearing and determination of a motion at Tab 18, Volume 2. Reasons for the decision on this motion were released to the parties on July 30, 2015. An order was made the same date and it is found at paragraph [13] of those Reasons.

[2] The motion applicant was the Applicant father in this case. The motion claims were contested by the Respondent mother.

Fundamental Purposes of Costs Rules

[3] The Ontario Court of Appeal in Serra v. Serra 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.

[4] Sub-rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met and that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. Sambasivam v. Pulendrarajah.

[5] Subrule 24(10) requires the court to decide in a summary fashion who is entitled to costs promptly after each step in a case.

Rule 24(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs. O. Reg. 114/99, r. 24(10).

[6] One of the purposes of this subrule is to ensure that the judicial officer presiding on a step in a case is the same person who is tasked with the issue of costs related to that step. Who is better placed to do so? Another purpose is to avoid loose ends which can become a tangled mess if left unaddressed. Probably the more important purpose of this subrule, however, is to control the litigation process and ensuring fairness during its course. A costs award during the course of litigation brings home to litigants that there are consequences that can hurt financially if they adopt positions that are determined to be unfounded on the evidence.

[7] Subrule 24(1) 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.

Analysis of Success on the Motion

[8] Both parties are seeking costs of this motion. Each of them claims to be the successful party in this motion. This is a rather unusual situation and deserves some examination of the motion, the positions taken by the parties and the outcome of the motion as evidenced by the order that was made.

[9] The father was the motion applicant. The main thrust of the motion was to enforce compliance by the mother with three provisions of an order that had been made on consent some time ago. The third provision was the one that was the main point in issue in the argument of the motion.

Paragraph (8)(j) – which requires the mother to afford to the father the first opportunity to care for the child on occasions when she is unable to do so.

[10] Had this motion claim been unopposed, or had there been a consent of the mother proffered on the day of the motion or at any time prior thereto, this would have had an impact on the issue of costs of this motion claim. However, this did not take place.

[11] What took place was that the motion claim was argued. The mother took a position based on her interpretation of the order and this court found that her position was ill founded and her interpretation was wrong.

[12] The mother is quite correct in stating that the court did not make an order on the motion at Tab 18, Vol 2 requiring her to comply with paragraph 8(j) of the order. However, to view this as a success on her part on this motion is extremely myopic. The written Reasons released make it abundantly clear that to simply make this kind of order was not only redundant (as she was already under an obligation to comply), but would have resolved nothing. As it was, the order made on the motion at Tab 18 was an expansion of the provisions of 8(j) with specific additional terms to ensure that the parties knew exactly what was expected of them in implementing paragraph 8(j). The Reasons clearly expressed that compliance is sometimes best addressed by changing the parts of an order that aren't working very well.

[13] This was clearly a win for the father as what the court ordered was for the mother to do certain things that, in the aggregate, would equate to compliance with paragraph 8(j) of the order. Up to that point, the mother was not, in my view, complying with paragraph 8(j) of the order. The motion claim was a reasonable one to bring. The mother's position was not a reasonable one on this issue. My view is that the father was the successful party on the motion, and the mother was not.

[14] In addition, the mother had not, as of the date of the motion, complied with paragraphs (2) and (3) of the order in that she had not provided to the father any information as to the child's upcoming school year commencing in September 2015. It was not inappropriate for the father to seek to enforce compliance with these paragraphs in his motion. One would expect that by the time the motion was to be heard, the mother would be in a position to simply provide a sheet of information to the father setting out all of the details of the child's new school year. That she did not do so gave the court sufficient reason to order her to do so in specific terms. That she indicated that she would provide details within one week of the motion certainly attenuates her exposure to costs on these two claims. However, these were clearly secondary claims on the motion. She was not the successful party. The father was, but the success was not overwhelming on these latter two claims.

Setting the Amount of Costs

[15] In setting the amount of costs, the court is guided by subrule 24(11):

Rule 24(11) A person setting the amount of costs shall consider,

• the importance, complexity or difficulty of the issues;
• the reasonableness or unreasonableness of each party's behaviour in the case;
• the lawyer's rates;
• 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;
• expenses properly paid or payable; and
• any other relevant matter.

[16] The issue in this motion was important to the parties. It was not, however, complex.

[17] The mother was unreasonable in her position. She persisted in this position for a lengthy period of time. It was her interpretation of the order, a consent order, and her actions based on that interpretation that essentially forced the father to commence this motion.

[18] I do not find that the lawyer's rate ($350 per hour) for a counsel of 36 years of experience is inappropriate.

[19] Motions in a case do not magically materialize. They require time and effort to prepare and where contested, more time and effort to argue. Counsel for the father has submitted a bill of costs relating to the motion at Tab 18, including work relating to the submissions on costs. The total is approximately $4,400 inclusive of fees, disbursements and GST. It seems clear that this bill also includes work (and disbursements) relating to the motion at Tab 22, Volume 2 which had been adjourned to a later date. Costs of that motion are not being dealt with here. The bill of costs reflects what amounts to a full indemnity to the father.

Relevant Considerations

[20] The court setting a quantum of costs can also look at any other relevant matters. The financial position of the parties can be a significant factor. Our Court of Appeal has said:

"…In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (S.C.J.) at para. 11. In fixing costs the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child." (C.A.M. v. D.M.)

[21] The mother's financial circumstances combined with the fact that she is a custodial parent with whom the child has her primary residence has a tempering effect on the quantum costs that might be otherwise awarded.

[22] Rule 18 deals with offers to settle and subrule 18(14) deals specifically with the costs consequences of a failure to accept a reasonable offer. There is no indication of any offers made with respect to the issues in this motion.

[23] I do not find that there was bad faith on the part of either party with respect to the issue in this motion.

[24] 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. (Delellis v. Delellis and Delellis)

Costs Award

[25] Having regard to all of the foregoing relevant factors, the applicable jurisprudence, and the mandate to decide costs of this step in a summary fashion, I am inclined to award costs for the step in this case that relates to the motion at Tab 18, Volume 2, (excluding the issue of costs) payable by the mother to the father in the amount of $1,800 inclusive of any applicable tax and disbursements.

[26] I am also inclined to award the father costs of this argument on the issue of costs fixed in the amount of $200 inclusive of any taxes and disbursements. He is clearly successful and the mother is not.

I am inclined to allow the mother to pay such costs initially in instalments but with a reasonable time limit for payment in full.

[27] Accordingly, there will be an order to go:

1. That the Respondent mother, Kayla Hiros, shall pay to the Applicant father, Bruce Thrush, costs of the motion at Tab 18, Volume 2, fixed in the amount of $2,000 inclusive of any disbursements and any taxes applicable, to be paid in monthly instalments of $150 per month commencing September 15, 2015, up to and including January 15, 2016, and to be paid in full by February 15, 2016.

Released: September 2, 2015

Justice John Kukurin