Court File and Parties

Court File No.: D91229/16

Ontario Court of Justice

Between:

Diana Dollery and Donald Dollery Applicants

- and -

Shelly Blair, Donna Lynn Dollery and Steven Robert Beckley Respondents

Counsel:

• Shelley C. Quinn, for the Applicants
• Renata Kirszbaum, for the Respondent, Shelly Blair
• Sara Hopper, for the Respondent, Donna Lynn Dollery
• Steven Robert Beckley, acting in person

Heard: November 23, 2016

Justice: S.B. Sherr

Costs Endorsement

Part One – Introduction

[1] On November 23, 2016, the court heard the applicants' (the grandparents) motion for temporary access to their 10-year-old grandson (the child). This motion was supported by the child's mother, the respondent Donna Lynn Dollery. It was opposed by the child's half-sister and custodial caregiver, the respondent, Shelly Blair and by the child's father, the respondent, Steven Robert Beckley.

[2] Donna Lynn Dollery (the mother) also brought a motion for access to the child on the same day. For oral reasons given this motion was not heard.

[3] In its oral reasons for decision, delivered the same day, the court granted temporary access to the grandparents, beginning with two 3-hour visits in 2016, and starting in January 2017, the first Sunday of each month for 7-hour day visits. The court placed conditions on the grandparents' access, including orders that: the grandparents not denigrate any family members; the mother not be present during access; there be no alcohol consumption by the grandparents during or within 12 hours of visits; and that the grandparents are required to follow Ms. Blair's directions in giving the child medication.

[4] Ms. Blair seeks costs of $6,100 against the grandparents and $1,130 against the mother.

[5] The grandparents and the mother ask that no costs be awarded.

Part Two – Legal Considerations

[6] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 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.

[7] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are to the Family Law Rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe. To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson.

[8] Subrule 18(14) reads as follows:

Costs Consequences of Failure to Accept Offer

18(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:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. 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.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

Part Three – Analysis of Success on the Grandparents' Motion

[9] Ms. Blair served an offer to settle dated November 8, 2016 on the grandparents. The order obtained by Ms. Blair was more favourable than her offer. Similar to the order, Ms. Blair proposed a monthly day visit for the grandparents. She proposed an 8.5-hour visit. A 7-hour visit was ordered, starting in 2017. In addition, Ms. Blair offered an alternate Wednesday visit to the grandparents for 4 hours. The court did not order this. The conditions of access proposed by Ms. Blair were very similar to the conditions ordered by the court.

[10] The grandparents also served an offer to settle. It essentially mirrored their position on the motion and was not close to the final result.

[11] Ms. Blair was the successful party on the grandparents' motion.

[12] Ms. Blair met all the conditions set out in subrule 18(14). However, the court will exercise its discretion under subrule 18(14) and discount Ms. Blair's entitlement to partial recovery costs to the date the offer was served. The grandparents were unreasonably being denied access to the child. They had to move to court to be able to have any access. They were successful in that regard. However, they overreached on the relief sought in their motion and once they were served with Ms. Blair's offer, they should have accepted it.

Part Four – The Mother's Motion

[13] The mother's motion for access was ill-conceived.

[14] Ms. Blair obtained a final order for custody of the child (in a different file in this court) dated May 15, 2014. The mother subsequently moved to change that order. That case resolved was by order dated May 31, 2016. This order requires that the mother's access be supervised by Ms. Blair.

[15] The mother's motion was procedurally flawed. She did not bring a motion to change the final order. She did not seek to consolidate the two court cases. Unlike the grandparents, she did not seek permission from the case management judge to bring this motion (which was limited to 1 hour, in anticipation of just the one motion being heard). The mother's material also did not appear to support the court changing a final order on a temporary basis – particularly since the final order was just made on May 31, 2016.

[16] Counsel for Ms. Blair, upon being served with the mother's motion, immediately advised her counsel of these procedural problems, yet the mother insisted on proceeding, causing unnecessary expense for Ms. Blair.

[17] Ms. Blair is entitled to costs from the mother.

Part Five – Considerations for the Successful Party

[18] In making this decision, the court considered the factors set out in subrule 24(11), which reads as follows:

24(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.

[19] The case was important for the parties. There was some complexity as there was considerable case law produced on the issue of grandparent access.

[20] The litigation behaviour of the grandparents and Ms. Blair was reasonable. The mother was unreasonable in proceeding with her motion.

[21] The rates claimed by counsel for Ms. Blair were reasonable.

[22] Ms. Blair did not produce a bill of costs, which would have been useful. Counsel should always have a bill of costs available if he or she anticipate asking for costs at the end of a hearing.

[23] The time claimed by counsel for Ms. Blair appeared to be proportionate for a motion of this complexity. She restricted herself to time claimed for this step of the case.

[24] Ms. Blair's claim for full recovery costs includes substantial work done on November 8, 2016 – the date her offer to settle was made. Several of the affidavits filed on behalf of Ms. Blair were sworn on November 8, 2016. According to the affidavit of service, Ms. Blair served four affidavits on the grandparents at 4 p.m. on November 8, 2016. The delivery confirmation at the top of her offer to settle is time-stamped at 4:06 p.m. on November 8, 2016. Pursuant to subrule 18(14), Ms. Blair is only presumptively entitled to partial recovery costs for the work claimed on November 8, 2016.

[25] The court considered the parties' ability to pay the costs order. See: MacDonald v. Magel. The court finds that the grandparents have the ability to pay the costs that will be awarded. The mother has limited means as she is on government assistance. A party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs, particularly when they have acted unreasonably and are the author of their own misfortune. See: Snih v. Snih.

[26] The grandparents asked for a support reduction because they are privately paying a lawyer, while Ms. Blair is on legal aid. The case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar at para. 25 and Alvarez v. Smith at para. 17-19.

[27] In support of their request for no costs, the grandparents submitted that a costs order will only escalate the existing conflict between them and Ms. Blair. This is not a reason to reduce costs. Family law litigants are responsible for and accountable for the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.

[28] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. Both these cases point out that when assessing costs, it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs....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.

Part Six – Conclusion

[29] Taking into account all of the considerations set out above, an order shall go that the grandparents pay Ms. Blair's costs of the motion in the sum of $3,600, inclusive of fees, disbursement and HST. The grandparents may pay the costs order at the rate of $300 per month starting on January 1, 2017.

[30] The mother shall pay Ms. Blair's costs in the sum of $600, inclusive of fees, disbursements and HST. She may pay the costs order at the rate of $50 each month, starting on January 1, 2017.

Released: November 28, 2016

Justice S.B. Sherr