Court File and Parties

Court File No.: D42198/07 Date: 2016-02-10

Ontario Court of Justice

Between:

Allan Melvin John Acting in Person Applicant

- and -

Teiana Vincente Respondent

Paula McGirr, for the Respondent

John Kingman Phillips, on behalf of the Office of the Children's Lawyer, for the child.

Heard: January 19, 2016

Justice: S.B. Sherr

Costs Endorsement

Part One – Introduction

[1] The respondent (the mother) seeks costs of $5,000 against the applicant (the father) arising out of a hearing to finalize custody and support arrangements for the parties' 12-year-old child (the child) that was heard on January 19, 2016.

[2] The father opposes the mother's request for costs. Counsel for the child took no position on this issue.

Part Two – Background

[3] On January 28, 2008 the mother was granted final custody of the child. The father was granted generous access to the child and the father was ordered to pay child support of $250 per month.

[4] The mother moved to change this order in 2013. She sought permission to move with the child to New Zealand. The father countered by seeking custody of the child.

[5] The case was set for trial. The parties reached a temporary resolution on the eve of trial. On September 18, 2014 Justice Robert Spence made a temporary order:

a) Permitting the mother to move with the child to New Zealand.

b) Providing for extended access by the father to the child in Canada.

c) Granting joint custody of the child to the parties.

d) Suspending the father's support obligation.

e) Maintaining Ontario as the jurisdiction to hear this matter.

f) Providing for a review of the order in January of 2016 to determine if the child wished to remain in New Zealand or return to Canada.

[6] The mother came to Canada with the child for an extended visit in December of 2015. The parties could not settle the matter.

[7] The mother brought a motion seeking a final order granting her custody of the child and permission to move with him to New Zealand.

[8] A case conference was scheduled for January 11, 2016. The father did not attend. Costs of this appearance were reserved. The case was set down for hearing for January 19, 2016, peremptory on the father. Time was important, as the child's school term in New Zealand was to begin in February. A decision needed to be made about where he would live.

[9] The mother postponed a flight she had scheduled to take the child back to New Zealand. She submitted that this cost her $1,500.

[10] The father attended the hearing on January 19, 2016. The parties were able to resolve most of the issues. The father agreed to the child moving with the mother to New Zealand and having final custody. Final parenting time between the father and child was agreed to. The mother also agreed not to seek child support from the father.

[11] The parties could not agree on certain issues. The mother wanted the father to pay the entire cost of the child's annual summer trip to Canada (the father wanted the cost split equally). The mother also asked for permission to obtain government documentation and to travel with the child without the father's consent. The father opposed this.

[12] An oral hearing was conducted. The court ordered that the father pay 2/3 of the cost of the summer access, up to a maximum of $2,000. The mother was permitted to obtain government documents for the child and travel with him without the father's consent. An order was made requiring the mother to notify the father of any travel plans, and to provide him with an itinerary and contact numbers for the child.

Part Three - Discussion

[13] 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.

[14] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are 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.

[15] Neither party made an offer to settle.

[16] The mother was the more successful party at the hearing. Most of the issues were resolved on the terms proposed by her in her notice of motion. She was permitted to obtain government documents for the child without the father's consent. There was divided success on the issue of paying for the child's summer trip. The father was granted some relief in conjunction with the order permitting the mother to travel with the child without his consent.

[17] 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.

[18] The case was important for the parties. The remaining issues were not complex or legally difficult. They were certainly emotionally difficult for the father.

[19] The mother acted reasonably in this case, except for her failure to make a written offer to settle.

[20] The father acted unreasonably by not attending at the case conference. This case would likely have been resolved if he had attended. The failure to resolve the matter increased the costs of litigation as the mother had to prepare for the hearing. Although the court has no jurisdiction to award damages, it notes that if the case had been settled in a timely manner the mother would not have incurred a $1,500 flight cancellation fee.[1]

[21] Subrule 14(18) provides that if a case conference is adjourned because a party is not prepared, the judge shall order the party to pay the costs of the conference immediately.

[22] The positions taken by the father on the disputed issues at the hearing were not unreasonable. He was reasonable in reaching agreement on most of the substantive issues on January 19, 2016.

[23] The mother's counsel did not provide the court with a Bill of Costs.

[24] The court had no issue with counsel's legal rates.

[25] The court also considered that mobility cases are challenging for everyone involved. By their very nature, an approved move will usually compromise a parent's relationship with his or her child. For this reason such cases are difficult to resolve and often need to be decided by the court. It is understandable for parents to contest such requests. See: Bridgeman v. Balfour, 2009 CarswellOnt 7214 (Ont. SCJ).

[26] The court has also considered that access to the father is important for the child. The court does not want to create undue financial roadblocks to it taking place.

[27] 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.

[28] Taking into account all of these considerations, an order shall go as follows:

a) The father shall pay the mother's costs fixed in the amount of $1,800, inclusive of fees, disbursements and H.S.T.

b) The father may pay these costs in three equal instalments of $600. They are to be paid on June 1, 2016, September 1, 2016 and December 1, 2016. If the father is more than 30 days late in making any payment, the entire amount of costs shall immediately become due and payable.

[29] The mother asked that $1,500 of costs be paid directly to her and $3,500 to legal aid in trust. As I set out in F.D.M. v. K.O.W., 2015 ONCJ 94, the court prefers not to become involved in retainer arrangements and make such orders. This is particularly the case when a request is made to split the costs in some manner between the party and counsel (or in this case, legal aid).[2]

[30] The mother can execute an irrevocable direction or assignment of costs and deliver it to the father. The court notes that subsection 46(4) of the Legal Aid Services Act states that all costs ordered by a court to be paid to an individual who has received legal aid services are the property of the Corporation and shall be paid to the Corporation.

Released: February 10, 2016

Justice S.B. Sherr

Footnotes

[1] The court also notes that the mother presumed she would be allowed to return in January to New Zealand and apparently did not obtain flight cancellation insurance (which would have been prudent since there was no agreement).

[2] The difficulties of the court involving itself in this process are apparent here. The amount sought for the mother is based on her flight cancellation charges. The court is not awarding this as a discrete costs item. This leaves it unclear as to whether the mother and counsel agree on how the costs awarded should be apportioned.