Court Information

Court File Number: 768/15

Ontario Court of Justice

Location: 7755 Hurontario Street, Brampton, Ontario

Date: May 10th, 2017

Justice: L.S. Parent

Parties and Counsel

Applicant: Shanae O'Connor (Present)

Applicant's Counsel: Antal Bakaity (Present)

Respondent: Christopher-Paul O'Connor (Present)

Respondent's Counsel: Shana Maiato (Present)

Endorsement

Order to go in accordance with minutes of settlement or consent filed.

Cost Endorsement

Overview

[1] Submissions filed on behalf of Ms. O'Connor, the Applicant/Mother, seeks costs to be awarded to her, on a partial recovery basis, in the amount of $4,977.67.

[2] Submissions filed on behalf of Mr. O'Connor, the Respondent/Father, agree that costs, on a partial recovery basis, should be awarded to Ms. O'Connor however, in the amount of $1,500.00.

The Motions Before the Court

[3] On December 21st, 2016, I heard the following motions:

(a) A motion by Mr. O'Connor seeking to expand his access to his children and to remove certain conditions attached to his access as contained in the existing temporary order granted November 16th, 2015 and an order for make-up access visits; and

(b) A motion by Mrs. O'Connor seeking to set aside the November 16th, 2015 order and seeking a new order incorporating all of the recommendations of the section 112 Courts of Justice Act report from the Office of the Children's Lawyer ("OCL") and specifically seeking an order for sole custody and that access between Mr. O'Connor and the children be supervised by a professional agency.

Disposition of the Motions

[4] Following the hearing of the motions and pursuant to written reasons released on January 30th, 2017, I:

(a) granted the relief sought by Ms. O'Connor in her notice of motion in accordance with paragraph 1(b), namely varying the current access order to provide for supervised access, and 1(c), namely varying the existing order so as to provide specific terms regarding telephone access. The balance of the relief sought by Ms. O'Connor was denied; and

(b) denied Mr. O'Connor's motion in its entirety.

[5] There is no dispute between the parties that Ms. O'Connor was the successful party in the motion. The issue in dispute is limited to the amount of costs to be awarded in light of this success.

The Family Law Rules

[6] Under Rule 24(1) of the Family Law Rules, O. Reg. 114/99, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[7] Rule 24(5) states that 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.

[8] Rule 24(10) indicates that promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner, who, if anyone, is entitled to costs, and set the amount of costs.

[9] Rule 24(11) states that 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 witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;

(e) Expenses properly paid or payable; and

(f) Any other relevant matter.

Analysis

Purpose of a Cost Order

[10] In Serra v. Serra, 2009 ONCA 395 the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles, namely:

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

2. To encourage settlement; and

3. To discourage and sanction inappropriate behaviour by litigants.

[11] The Court's role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but 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 (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)).

Factors to be Considered

[12] Rule 24(11) sets out factors to be considered in determining costs. It is these listed factors that the court must consider in determining a costs award which is fair, reasonable and proportional in all the circumstances. (See: Slongo v. Slongo 2015 ONSC 3327 (Ont. SCJ)).

[13] In reviewing the factors set out in 24(11), I have considered the following:

i) The importance, complexity and difficulty of the issues:

[14] The issue of variation of the existing order granted on consent on November 16th, 2015 was important to both parties. The issue can also be categorized as complex and difficult.

[15] Ms. O'Connor was required to lead evidence to satisfy that the threshold of "exceptional circumstances" was met so as to permit the implementation of the recommendations of the OCL report dated June 27th, 2016 at this interim stage in the proceedings.

[16] Mr. O'Connor was required to lead evidence to support that a "material change in circumstances" occurred and supported a variation of the existing temporary order as he was requesting.

[17] Both parties submitted extensive affidavit material and jurisprudence to support their various positions on the issues before the court. Both counsel were extremely thorough in their presentation of their clients' respective positions.

ii) The reasonableness or unreasonableness of each party's behaviour in the case:

[18] I do not find that either party's behaviour crossed the threshold of being unreasonable or in bad faith.

iii) The lawyer's rates and disbursements:

[19] I find the rate of counsel for Ms. O'Connor to be reasonable given his twenty-one (21) years at the Bar and experience in family law. I also find that the disbursements of $287.80 to be reasonable.

[20] The submissions filed on behalf of Mr. O'Connor did not question opposing counsel's hourly rate or the amount of disbursements.

iv) 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:

[21] Counsel for Ms. O'Connor has provided a detailed Bill of Costs indicating that a total of 17.40 hours was spent in preparation for his client's motion and to respond to Mr. O'Connor's motion. The time spent by counsel was 13.60 hours and the time spent by his law clerk was 3.80 hours.

[22] Counsel for Mr. O'Connor submits that the time submitted by counsel is unreasonable. Counsel submits that costs were awarded, and satisfied by Mr. O'Connor, to compensate Ms. O'Connor for the motions not to proceed on the original hearing date, namely October 18th, 2016. Counsel submits to now request costs for the time for the preparation of motion materials and submissions is unreasonable.

[23] Counsel for Ms. O'Connor submits that the Bill of Costs relates exclusively to legal costs incurred after October 18th, 2016. He submits that the result of the October 18th, 2017 adjournment was to allow for additional materials to be filed directly as a result of Mr. O'Connor's actions. He submits that the costs sought are reasonable as they relate to the preparation of materials and the submissions to the court following the October 18th, 2016 adjournment.

[24] A review of the Bill of Costs dated March 6th, 2017 does lead me to conclude that not all docketed time is reasonable and therefore reimbursable. Specifically, there appears to be:

a) Multiple entries for "review of file";

b) Duplication of entries for drafting an affidavit of service and memo to process server;

c) Time docketed for consultation between counsel and his law clerk;

d) Duplication of entries regarding revisions to draft Factum;

e) A disproportionate amount of time to compile the motion materials; and

f) A disproportionate amount of time under the heading review of materials and prepare for motion.

[25] I also find that the length of the motion materials were such so as to address the entire claims raised on behalf of Ms. O'Connor, only two of which were awarded.

I do note that counsel for Mr. O'Connor did not reference nor did she submit a Bill of Costs to demonstrate what legal fees and disbursements were incurred by her client in pursuing his motion and responding to Ms. O'Connor's motion.

vi) Other factors

[26] Counsel for Mr. O'Connor submits that her client's financial circumstances should be considered. Counsel specifically notes that Mr. O'Connor had a period of unemployment for over one year, only recently secured employment however near the minimum wage level which is drastically lower than Ms. O'Connor's salary, he carries the payments for family debts, and does not have other persons assisting him in meeting his day-to-day living expenses.

[27] While I have considered Mr. O'Connor's financial position, his lack of resources is just one of the factors that I must consider. The record is clear that Mr. O'Connor instructed his counsel to pursue his motion, which was denied in its entirety, rather than simply respond to Ms. O'Connor's motion.

Rule 18 Offers to Settle

[28] To determine if a party has been successful, I must consider how my decision compares to any offer submitted by one party to the other (See: Lawson v. Lawson).

[29] Rule 18 provides the criteria and perimeter under which offers to settle are to be considered by the court. Rule 18(14) provides as follows:

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.

[30] Rule 18(15) sets out the burden of proof:

"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)."

[31] In his submissions, counsel for Ms. O'Connor references an Offer to Settle served on opposing counsel. Reference to this offer is also made by counsel for Mr. O'Connor.

[32] Submissions regarding the offer are, on behalf of Ms. O'Connor, that it was "… predominantly in line with what ultimately occurred…" and on behalf of Mr. O'Connor, that the terms were not severable.

[33] The actual offer was not submitted by either counsel in support of their positions. It is therefore difficult to determine what, if any, consideration should be allocated to this offer given the clear framework of Rule 18.

[34] The assessment of costs is not a mechanical exercise (see: Boucher et al v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 at para. 26 (C.A.)).

[35] As stated by the court in Delellis v. Delellis, 2005 CarswellOnt 4956 at para. 9 (Ont. S.C.):

"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." (See also: Selznick v. Selznick 2013 ONCA 35 (Ont.C.A.); Serra (supra); Murray v. Murray (2005); Guertin v. Guertin 2015 ONSC 5498 (SCJ)).

[36] After a review of the submissions filed, the considerations referenced above and pursuant to Rule 24(6) FLR, I find that Ms. O'Connor is entitled to $3,700.00 in costs, inclusive of disbursements and HST, on a partial recovery basis.

[37] Neither counsel made submissions regarding the payment of costs.

[38] The payment of costs remains within the discretion of the court. Taking into consideration the objectives of a cost order, as stated in the case law previously noted, and the evidence provided on behalf of Mr. O'Connor's ability to pay, the costs as ordered will be paid over time.

Order

[39] Given the above considerations, the following order is granted:

a) Costs, inclusive of disbursements and HST, are fixed at $3,700.00;

b) These costs are to be paid by the Respondent, Mr. O'Connor, to the Applicant, Ms. O'Connor for the motions heard on December 21st, 2016; and

c) The costs award will be satisfied by three instalments, payable by certified cheque, money order or trust cheque to KANIA LAWYERS in trust as follows:

1. $1,000.00 by June 9th, 2017;

2. $1,350.00 by July 10th, 2017; and

3. $1,350.00 by August 11th, 2017.

Justice L.S. Parent