Court File and Parties

Ontario Court of Justice

In the Matter of the Children's Law Reform Act, R.S.O. 1990, c. C.12

In the Matter of the Family Law Act, R.S.O. 1990, c. F.3

Between:

Mark Koetsier Self-represented Applicant

— And —

Carmen St. Denis L. Parise for the Respondent

Heard: In Chambers

Before: Kukurin J.

Decision on Costs

[1] This is a decision on the claim for costs arising on a motion for summary judgment (at Tab 10 of the Continuing Record) brought by the Respondent mother in this proceeding. This proceeding was commenced by a Motion to Change (at Tab 1) brought by the Applicant father seeking to change the custody and access, as well as the child support provisions contained in previous orders made between these same parties. My decision on the Motion for Summary Judgment was released on November 17, 2016.

[2] The claim in the summary judgment motion was to dismiss the Motion to Change claims to vary custody and access. The decision on the summary judgment motion was favourable to the mother as it dismissed these variation claims sought by the father. The basis for the dismissal was the inability of the father to demonstrate that there had been any material change in circumstances from the prior order(s), a pre-requisite for the court to vary custody or access. The father was the unsuccessful party. The mother was totally successful. The Motion to Change did proceed to trial on other issues (i.e. child support variation).

Principles Governing Costs in Family Law

[3] The Ontario Court of Appeal in Serra v. Serra 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.

[4] Sub-rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met and that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. Sambasivam v. Pulendrarajah.

[5] Costs in family litigation are governed by Rule 24 of the Family Law Rules. This Rule has seventeen subrules. Subrule 24(10) provides that:

Rule 24(10) 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.

[6] "In a summary manner" obviates the need for a detailed analysis in these Reasons of what took place throughout the history of the case. That can be gleaned from the decision made in the course of the case, which was a dismissal for failure to demonstrate a material change in circumstances.

[7] Also of importance in this subrule is the obligation on the judge who dealt with a step in the case to decide entitlement and quantum of costs of the step with which that judge dealt, and to do so promptly after the step in the case which is the subject of the costs claim.

[8] The starting point for costs, however, is subrule 24(1) which establishes a presumption in favour of the successful party.

Rule 24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

Factors for Determining Costs

[9] In setting the amount of costs, the court is guided by subrule 24(11) to consider:

• the importance, complexity or difficulty of the issues;
• the reasonableness or unreasonableness of each party's behaviour in the case;
• the lawyer's rates;
• 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;
• expenses properly paid or payable; and
• any other relevant matter.

Analysis

[10] What must be kept in mind is what step in this case it is for which costs are sought. It is the motion brought by the Respondent mother, by way of summary judgment, for a dismissal of the father's Motion to Change claims dealing with custody and access. I do not regard the claim for costs as costs of the Motion to Change proceeding. In fact, the decision in the motion for summary judgment did not resolve all issues in the Motion to Change case. It subsequently went to trial on issues other than custody and access variation.

[11] I am dealing with the step in the case which I dealt with, which was the mother's motion for summary judgment. The mother's submissions on costs which I invited from any party seeking costs was filed and in the time permitted for filing. It contained a Bill of Costs which included amounts it claimed for fees and disbursements. There were no disbursements included. The amounts claimed, exclusive of GST were:

• Full Recovery: $8,734
• Substantial Indemnity: $7,423
• Partial Indemnity: $6,113

[12] The Bill of Costs submitted by the mother and her counsel included matters which clearly pre-dated the motion for summary judgment. The motion itself was dated, filed and served only on November 3, 2016. It was heard on November 16, 2016. Reasons for judgment were released November 17, 2016. It was not a particularly complex or difficult motion, either in the issues or in the evidence. The father simply failed to satisfy the court of a pre-requisite for the claims to proceed.

[13] Accordingly, I am a bit astounded with Bill of Cost items that date back to January 2016. My review of the Endorsement Record indicates that the Motion to Change proceeding was commenced in December 2015 and had five court appearances prior to my involvement. One of these was a Settlement conference with another judge. Another was a trial management conference with yet another judge presiding. Docket entries for these are included in the Bill of Costs submitted in the claim for costs to be decided by me. In my view, these are wrongly submitted.

[14] My role in this is to decide in a summary manner who is entitled to costs, and in what amount, for the step in the case with which I dealt. It is difficult to segregate out of the Bill of Costs submitted what items on it were related to this step.

[15] I would award the mother $3,000 in basic costs as the successful party in her motion. This reflects that this was, after all, a motion, not a trial. Moreover, it did not involve viva voce evidence from anyone. Argument was not long in duration, perhaps one full morning. This amount reflects what I would consider reasonable time to review the Respondent's materials, speak with the client, prepare the motion and supporting evidence, review and respond to the father's evidence, and preparation for and attendance to argue the motion.

[16] I would increase the costs by $1,000. This takes into account the history of this motion in the litigation between the parties, review of the materials that the father filed which was not really a response to the summary judgment motion he was served with, and the costs of this motion for costs.

[17] There were no offers to settle this summary judgment motion within the meaning of Rule 18. Accordingly, Rule 18 considerations are not a factor.

[18] The father's response to the costs argument was not persuasive. He obviously felt that he was the successful party as he included what he felt were costs he should be awarded on this motion. Moreover, he complained that the court did not consider the Parenting Capacity Assessment report of Dr. Ross in its decision on the summary judgment motion. In fact the court did not have the full report, but did have and did consider an executive summary. The onus was on the father to file the report in the Continuing Record as part of his evidence on this motion if he wished the court to consider the entire report. He failed to do so.

Conclusion

[19] In summary, the mother shall be entitled to costs of her motion for summary judgment in the amount of $4,000 plus any GST that may be applicable to such award of costs.

[20] This is payable within sixty days of the date of this decision.

Released: July 12, 2017

Signed: Justice John Kukurin