Court File and Parties

Court File No.: D61896/13 Date: June 6, 2016

Ontario Court of Justice

Re: Nathalie Castillo – Applicant And: Emmanuel Phillip – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Anita Kocula - for the Applicant
• Patricia Smyth - for the Respondent

Heard On: By written submissions

Costs Endorsement

Introduction

[1] The issue of costs arises out of a contested motion, heard on March 18, 2016, brought by the Respondent ("father") with respect to access and ancillary order with respect to the parties' two children. Despite the high conflict and litigious nature of this case, the parties were able to agree to most of the relief sought by the father in his motion with respect to frequency and duration of access. However, the disputed issues that were argued revolved around two issues namely, if the Applicant's ("mother") partner could be present at the exchanges and if the father could pick up the children at their school. These were extremely contentious issues as there were outstanding criminal charges against the mother and her partner with respect to assault, mischief and uttering death threats against the father and the father pleaded guilty to a charge of harassment and was then found guilty to a charge of fail to comply and is on probation.

[2] My decision was released on March 29, 2016. The Respondent was successful on all of the issues. I found that in view of the high conflict between the parties that there should be as little contact as possible between the parties. I also found that there was no reason for the mother's partner to be present or to facilitate access as she is actively involved in the conflict and seems to be a catalyst for increasing the conflict.

[3] If costs were sought, counsel were to provide brief written submissions as to costs. Both counsel filed their costs submissions.

Position of the Parties

[4] Counsel for the father seeks full recovery of costs in the amount of $3,076.34 on the basis that the father was the successful party and he behaved reasonably whereas the mother did not. It is submitted that counsel has already reduced her hourly rate significantly.

[5] Counsel for the mother submits that there should be no costs or in the alternative only on a partial indemnity basis. It is submitted that the father did not make an offer to settle and that the mother was agreeable to almost all of the terms the father was seeking.

Applicable Legal Principles

[6] 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.

[7] 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.

[8] 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:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behavior by litigants.

[9] In Biant v. Sagoo Justice Perkins considered the costs award scheme under the Rules and commented, at para. 20:

[T]he preferable approach in family law cases is to have costs 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. There remains, I believe, a discretion under r. 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules' preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.

[10] The Ontario Court of Appeal in the recent case of Forrester and Dennis confirmed this approach and the court further reaffirmed its decision in Sordi v. Sordi at para. 21, "In the context of family law disputes, a court need not find special circumstances to make a costs award approaching substantial indemnity."

[11] 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 Council 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.

[12] Subsection (b) of Family Law Rule 24(11) relates to the reasonableness of each party's behavior in a case.

[13] In considering if a party acted reasonably, Family Law Rule 24 (5) directs the court to consider if a party made an offer to settle and the reasonableness of any offer to settle.

[14] 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.

[15] I agree with the submissions of counsel for the mother that offers to settle are an essential part of family litigation and that the failure to make an offer is a factor to be considered in any cost award. However, I do not agree with mother's counsel's submission that if the father had served an offer to settle outlining the terms he was seeking, if the matter could not be settled, the issues on the motion would have been narrowed and focused. In this case, the parties were able to resolve many of the issues and the motion was focused on the contention issues. The mother was well aware of the father's position with respect to the contentious issues namely, that the mother's partner not be involved on the access exchanges and that as much as possible the majority of the exchanges should be at the children's school and not the police station. Many different unsuccessful attempts had been made to resolve the issues around the access exchanges. It was the mother's insistence of involving her partner that prevented the issues from being resolved. If the mother had been willing to agree to the terms proposed by the father then the entire motion would not have been necessary.

Application of Legal Principles to the Facts

[16] 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: Although the issues were of great importance to both parties, they were not factually or legally difficult.

b. The reasonableness or unreasonableness of each party's behavior in the case: The father acted reasonably. On this motion there was a great deal of evidence from third parties that both the mother and her partner's behaviour were challenging. In the decision on the motion I found that both the mother and her partner had a history of aggressive and hostile behaviour not just to the father but to the staff at the supervised access centre, a pattern of non-cooperation with children's aid society and conflict with one of the children's teachers. The report of the Office of the Children's Lawyer states that both the maternal and paternal family members and professionals raised concerns that the mother's partner may be escalating the conflict and there were concerns that the mother was attempting to marginalize the father. The mother's partner had her bail release terms varied so that she could have contact with the father on the basis that she had been "named in a family court order, access to be done at a police station". This was blatantly false. Although I appreciate the mother's partner is not a party to these proceedings, the mother was aware of the concerns being expressed about her partner and she was aware of this blatant lie. I therefore find that mother's behaviour was unreasonable in insisting that her partner be involved in the access exchanges.

c. The lawyer's rates: Ms Smyth has practiced family law for 25 years. She submits that she charged the father a reduced hourly rate of only $175 due to his limited means.

d. The time properly spent: A detailed docket was filed and the time spent for the motion was reasonable.

e. The expenses properly paid and payable: The usual disbursements are claimed for a cost of $169.42.

f. Any other relevant matter: No other issues were raised.

[17] I have considered all of these factors and in particular I note that if father's counsel had charged her normal hourly rate then the fees requested would have been at least double. I find that the father is entitled to his costs as he was successful, the mother acted unreasonably and she should have settled this motion. In the circumstances of this case a fair and reasonable amount is full recovery of costs.

[18] Order as follows:

1. The Applicant shall pay to the Respondent costs fixed at $3,076.34 inclusive of disbursements and applicable taxes. Such costs to be payable in full within 60 days.

Justice Roselyn Zisman

Date: June 6, 2016