Court File and Parties
Ontario Court of Justice
Date: 2016-01-12
File No.: Brampton 1058/14
Between:
Roberto Santos Pileggi Applicant
— And —
Lindsey Anne Parkin Respondent
Before: Justice Philip J. Clay
In Chambers
Reasons for costs order released on January 12, 2016
Counsel
The Applicant represented himself
Ms. L. Moritz for the Respondent
CLAY J.:
BACKGROUND
[1] The Applicant father ("father") issued an Application on September 3, 2014 seeking custody of the child Hunter Pileggi born March 14, 2006 and child support pursuant to the table to the Child Support Guidelines ("CSG"). The Respondent mother ("mother") filed her responding documents in which she sought custody and a child support order.
[2] The Office of the Children's Lawyer completed a report pursuant to s. 112 of the Courts of Justice Act which recommended that the parties retain joint custody with Hunter's primary residence to be with the father. The parties entered into Minutes of Settlement that contained those terms and set out a timesharing plan. Those Minutes were filed in court on October 5, 2015 and a final order was made. The child support issue was adjourned to December 9 for argument and a separate decision has been released on that matter. The issue before me is only with respect to costs on the non-financial issues. The Minutes of Settlement stated in paragraph 14:
- The issue of costs in regard to the custody, access and parenting issues shall be determined by the Ontario Court of Justice.
[3] In my endorsement on October 5 I set out filing deadlines for costs submissions. I have reviewed the costs submission of the mother filed October 23 and the father's response filed November 4. The mother sought costs in the total amount of $19,902.28. The father's position was that there should not be a costs order.
THE LAW
[4] Costs in family law matters are governed by Rule 24 of the Family Law Rules. The sub-sections relevant to this matter read as follows:
SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS
[5] 24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
DECISION ON REASONABLENESS
[6] (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. O. Reg. 114/99, r. 24 (5)
FACTORS IN COSTS
[7] (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. O. Reg. 114/99, r. 24 (11).
[8] Rule 24(5) refers to offers to settle and Rule 18 addresses offers specifically.
RULE 18 OFFERS TO SETTLE
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
[9] (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. O. Reg. 114/99, r. 18 (14).
COSTS CONSEQUENCES — BURDEN OF PROOF
[10] (15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).
COSTS — DISCRETION OF COURT
[11] (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).
ANALYSIS
[12] The mother took the position that she should receive costs on a full recovery basis from the beginning of the litigation. At the first case conference on December 11, 2014 the parties consented to an order requesting that the OCL conduct an investigation and an order that provided the mother with access on Tuesday and Thursday evenings in addition to her alternate weekends.
[13] Both parties co-operated with the OCL investigation. They then adjourned this matter on consent until the OCL report was delivered. On August 4, 2015 a Settlement Conference was held. The mother advised that she was prepared to accept the recommendations of the OCL report. The father advised that he was agreeable to the joint custody recommendation but not to the specific timesharing recommendation.
[14] The father served an offer to settle by e-mail on March 25, 2015. That offer was for shared custody with the father retaining primary residence. The offer continued the terms of the temporary order of December 11, 2014 with respect to timesharing. Despite reminders, Ms. Moritz did not respond to that offer.
[15] The mother's costs submission attached her offer to settle dated July 22 which was served by e-mail on July 27. That offer, made after the OCL report was delivered, included most of the terms of the OCL recommendations and that offer was the template for the final Minutes of Settlement on October 5, 2015.
[16] I have considered the mother's submissions with respect to her need to retain counsel because of the father's attitude and behaviour. I note that there was a very concerning incident at an access exchange on August 30, 2014. Each party has a different version of what occurred in this verbal conflict between the father and the maternal grandfather. This incident precipitated the Application for custody brought by the father a few days later.
[17] I am to consider litigation behaviour when determining if there should be an order for costs. It is often the case in family law matters that one or both parties feel unable to communicate with the other due to allegations of intimidation or bullying. The mother may well have felt compelled to retain counsel. However, I cannot make a costs order just because one party has incurred legal costs and the other has not. I can only take into consideration the litigation behaviour of which I am specifically aware or about which I can make factual findings. I note that the father consented to additional access at the first opportunity and made a comprehensive offer to settle even before the OCL investigation was completed (albeit one that did not contain the final timesharing terms). In terms of the litigation itself, both parties conducted themselves reasonably and responsibly up to August 4, 2015.
[18] It was completely understandable and appropriate for each party to await the OCL report before committing to the terms of a final offer. I find that there should be no costs ordered for any period prior to the delivery of the report with the exception of the drafting of the offer which ultimately became the Minutes.
[19] The mother acted responsibly in serving her offer to settle on July 27 which was exactly seven days before the Settlement Conference. That offer was in line with the report and became the final order. The father should have accepted the offer on August 4, 2015. He had known of the direction of the OCL conclusions since the May 14, 2015 disclosure meeting. He had the actual report in July. He had a full week to review the offer to settle.
[20] I find that the mother is entitled to costs on a full recovery basis for the preparation of the July 27 offer and for legal work done after August 4, 2015 on these non-financial issues. I will not allow costs for the attendance on August 4 as the conference was necessary. Even if the self-represented father had accepted the July 27 offer, the parties would still have needed to come to court to file the Minutes and obtain a disclosure order and a date for the argument of the financial issues.
[21] After August 4, 2015 Ms. Moritz had to prepare a Trial Management Conference Brief and attend on October 5. At that time the father accepted the same offer that he could have accepted on August 4. The mother should have her costs for that time period. I have reviewed the bill of costs filed. I find Ms. Moritz's rate of $395 per hour to be reasonable given her experience. I will set out below how I arrived at the costs award. I realize that the times that I have allowed are not the same as the bill of costs set out but I consider these times to be reasonable.
Costs Calculation
Meeting with client re: report and offer | 2.0 hours Preparation of the offer to settle | 2.0 hours Preparation of S/C and TMC Brief | 2.0 hours Drafting Costs submissions | 1.5 hours Drafting and issuing costs order | 0.5 hours Total preparation hours allowed | 8.0 hours
8 hrs x $395 per hour | $3,160.00 Counsel fee for Oct. 5 as per Bill of costs | $1,382.50 Disbursements for process server and filing | $200.00 Total fees and disbursements | $4,742.50 H.S.T. @ 13% | $616.53 Total costs allowed | $5,359.03
ORDER
[22] The Applicant father shall pay to the Respondent mother her costs of this matter fixed in the amount of $5,359.03 as follows:
a) The sum of $3,000.00 by February 29, 2016.
b) The balance of $2,359.03 by April 29, 2016.
[23] Ms. Moritz shall take out this order without the requirement of the approval of a draft order by the Applicant father.
Released: January 12, 2016
Justice Philip J. Clay