Court File and Parties
Ontario Court of Justice
Date: 2015-10-06
Court File No.: Kenora FO-08-014-004
Between:
Stephanie Palmer Applicant
— And —
Jesse Bongfeldt Respondent
Before: Justice Sarah Cleghorn
Written Submission Filed by: September 21, 2015
Reasons for Judgment on Costs Released Electronically on: October 6, 2015
Counsel:
- Thomas Carten, counsel for the applicant
- Stephen Lundin, counsel for the respondent
Reasons for Judgment
Overview
[1] I released my decision on the Motion to Change brought by the mother on July 30, 2015 and invited counsel to submit written submissions on the issue of costs (written submissions were received from both counsel).
[2] As a general overview the mother brought a Motion to Change seeking to change the ordinary residence of the child from Winnipeg, Manitoba to Victoria, British Columbia. The Order in effect and entered into on consent of both parties is dated January 9, 2014.
[3] At the conclusion of the mother's case I requested that both counsel file written submissions on the issue of a material change in circumstances. I found that the mother did not meet the required onus of establishing a material change in circumstances. Accordingly her motion was dismissed. The father had conceded that should the mother's motion be dismissed that he was prepared to have the relief requested in his Response to the Motion to Change dismissed as well.
Positions of the Parties
[4] On behalf of the mother, Mr. Carten submits that there should be no order for costs. In support of his position, Mr. Carten submits that the mother truly believed she had received a favourable offer of employment. Further, the mother notes that she had to incur substantial costs in preparing for the relief claimed in the Response to the Motion to Change of the father, that being a claim that the father have the primary residence of the child with him in Kenora.
[5] On behalf of the father, Mr. Lundin submits that costs should be payable from the date the Offer to Settle was served (with the offer proposing that the mother could withdraw her claim on a without cost basis). The offer was served on September 17, 2014. The costs sought by the father total $22,839.04 (inclusive of fees, disbursements and HST).
Cost Analysis
[6] The parties were represented by experienced and knowledgeable senior counsel who are both well versed in the Family Law Rules, offers to settle and costs consequences.
[7] It is without question that the father was the successful party in this proceeding. I dismissed the mother's claim in its entirety. Further, the mother's main point on what constituted the material change in circumstance rested on an employment offer that I found was not a bona fide offer of employment but rather a tactical move to strengthen her case. My decision concerning the offer of employment was made after having the benefit of hearing from the prospective employer and the mother.
[8] The framework for assessing the appropriate cost award is found in Rule 24 of the Family Law Rules. This rule very clearly states, "There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal."
[9] The father is therefore presumed entitled to costs.
[10] I must next turn my mind to Rule 24(11) that sets out the factors to be considered when assessing costs.
(a) The importance, complexity or difficulty of the issues
[11] I cannot find that the matter before me can be considered complex in nature nor were the issues of significant difficulty. I do however accept that the matter was of great importance to both of the parties. The mother was attempting to relocate to be with her new partner whom she has had a child with and to form a family unit in British Columbia. The father was attempting to prevent his child from being removed from his close proximity and impacting his ongoing and consistent parenting time that he is currently entitled to under the Order. Both parents were emotionally invested in the outcome as the decision either way has a great impact on the two separate family units and more importantly, on the parties' child.
(b) The reasonableness or unreasonableness of each party's behaviour in the case
[12] The crux of the mother's case rested on the offer of employment. Paragraphs 54 to 64 of my decision sets out my reasons for why I concluded the offer was not a bona fide one. In paragraph 88 I further found, "Rather it is a strategic move put together by Ms. Palmer's family to try and establish a material change in circumstances."
[13] In assessing the decision to commence the Motion to Change the preamble from the January 9, 2014 Order is clearly relevant. That preamble reads as follows:
Motions to Change brought by both parties were scheduled for hearing this date but were resolved in advance by way of Minutes of Settlement.
The following persons were in court: Thomas Carten, solicitor for the Applicant; Stephen R. Lundin, solicitor for the Respondent.
WHEREAS Stephanie Palmer has brought a Motion to Change seeking the court's permission to move the child, born October 29, 2007, to Victoria, British Columbia and to increase child support;
AND WHEREAS Jesse Bongfeldt has defended this claim and has brought a claim of his own seeking an order that the parties have joint custody of Joryn with Joryn residing with Jesse Bongfeldt in Kenora, Ontario;
AND WHEREAS Stephanie Palmer is currently residing with Joryn in Winnipeg, Manitoba while she is attending the University of Manitoba;
AND WHEREAS Stephanie Palmer is expecting a child with her new partner, Frederick Jaskiewicz;
AND WHEREAS Frederick Jaskiewicz resides in British Columbia and has been a member of Royal Canadian Navy since January 13, 2013.
[14] Both parties retained the same counsel who represented their respective interests when they entered into the consent order as referenced above.
[15] The mother was aware (or ought to be fully aware) of what was needed to prove a material change in circumstances. Given my findings as it relates to the offer of employment I can only conclude that the mother was acting unreasonably when she pursued this course of litigation.
(c) The lawyer's rate
[16] The father is the only party that is seeking costs in this matter. Given the years of experience of Mr. Lundin, his hourly rate is reasonable.
(d) and (e) The time properly spent on the case and expenses properly paid
[17] Mr. Lundin has submitted his bill of costs where he has accounted for the work completed on behalf of his client. I accept the accounting that has been put forward by Mr. Lundin on the work completed for this matter.
[18] I must further turn my mind to the offer to settle served by the father. The father served an offer to settle that meets all of the criteria as set out in Rule 18(14), specifically the offer directly related to the proceedings before the Court, it was served within the required time and it was not withdrawn prior to the start of the trial.
[19] The mother chose not to accept that offer. The contents of the offer to settle would have netted the mother a more favourable result than my decision at the conclusion of the trial.
[20] I must also take into consideration that a cost award must be one that is reasonable in all circumstances.
[21] The mother submits that she has incurred additional costs in preparing for the claim brought by the father to have the primary residence change to him in his Response to the Motion to Change. In light of the offer to settle, the mother was fully aware that she had the option to stop the litigation and costs she was incurring by accepting the father's offer.
[22] In my view, the relief requested by the father should not have taken the mother aback. Prior to starting the litigation the mother should have been made fully aware of what to expect in responding documents. It must be remembered that the mother was seeking to remove the child to another province and seeking to substantially interfere with the father's parenting time. The relief sought by the father was entirely predictable, given the position that the mother was choosing to advance. The mother made a fully informed choice with the benefit of senior counsel to take her chances at trial.
[23] Mr. Carten submits that the mother is of limited means with nominal income or assets and that a cost award against her will impact the children.
[24] There are three fundamental purposes of cost rules, as set out in the decision of Fong et al v. Chan et al:
(1) to indemnify successful litigants for the cost of the litigation;
(2) to encourage settlements; and
(3) to discourage and sanction inappropriate behavior by litigants.
[25] This was not the mother's first involvement with the court system. The mother should have been fully aware that costs are a true consequence for the unsuccessful party. The mother chose to pursue this litigation knowing that if she was unsuccessful she faced the risk of costs being assessed against her. The mother also served an offer to settle in this matter and it can only be presumed that she did so being aware of the Rules surrounding costs as outlined above in this decision.
Decision
[26] The father served an offer that was reasonable in the circumstances and did so very early on in the litigation process. I am not moved by the mother's position that she is of such limited means she should not face a cost award. The mother made an informed decision to pursue her matter in court despite the preamble of the January order which essentially put both parties on notice of what would be viewed by a trial judge as foreseeable when attempting to establish a material change in circumstances.
[27] In my view, the mother acted unreasonably in attempting to make a strategic move with an offer of an employment that was not bona fide.
[28] The mother will complete school and I have no doubt she will find meaningful employment within the foreseeable future which will provide her the funds to pay the costs to the father.
[29] The Rules concerning costs are there for a purpose. Specifically to encourage settlement, deter litigation and to have parties to a proceeding make reasonable and rational decisions along the way.
[30] This is an appropriate case to apply Rule 18(14) and require costs payable by the mother to the father on a full recovery rate from the date of the offer to settle of September 17, 2014.
[31] An order shall issue as follows:
1. Stephanie Palmer shall pay costs to Jesse Bongfeldt in the amount of $21,036.00 (inclusive of fees, disbursements and HST) to be paid in monthly installments of $500.00 per month commencing November 1, 2015 and the 1st of each month thereafter until paid in full.
Released Electronically: October 6, 2015
Signed: "Justice Cleghorn"