Court File and Parties
Court File No.: DFO-15-12595-00A2 Date: 2018-01-22
Ontario Court of Justice
Re: Martin Sean Loftus – Applicant and Briana Christine Chamberlain - Respondent
Before: S. O'Connell
Counsel: Ms Judith M. Nicoll, for the Applicant Mr. Andrew Rogerson, for the Respondent
Costs Endorsement, Number 2
for Applicant's Motion for Christmas Access, heard November 10, 2017
Introduction
[1] On November 15, 2017, for oral reasons delivered on that day, I made the following temporary order regarding the parties' motion which argued before me on November 10, 2017:
The Applicant, Mr. Loftus, is permitted to have access to the child, Finnley Jack Chamberlain, born September 17, 2011, from Friday November 17, 2017 at 3:00 PM until Sunday November 19, 2017 at 6:00 PM.
For Christmas of 2017, the Applicant, Mr. Loftus, shall have temporary Christmas access with the child, Finnley Jack Chamberlain, born September 17, 2011, from Thursday, December 21, 2017 at 4:00 PM to Sunday, December 24, 2017 at 4:00 PM. The Applicant shall pick up and return the child to the mother's home. The access shall be exercised in California, given that the child's passport has expired.
The following conditions of access apply to the above orders:
a. The access will be exercised in California;
b. The Applicant shall be permitted to pick up the child at school on November 17, 2017 at 1:10 PM;
c. The Applicant shall provide his address and telephone number in California to the mother prior to the exercise of access;
d. A third person, including a police officer if necessary, shall be present at all access exchanges at the mother's home.
The trial in this matter is continuing before Justice M. Pawagi of this Court on December 27 and 28, 2017. Should the parties wish to convene an 'exit pre-trial' or settlement conference before me prior to trial, then they should contact the trial coordinator to schedule this.
Although there is a dispute between counsel as to whether the Order is continuing, for greater clarification, paragraphs 6 and 7 of the Order dated November 12, 2015 providing telephone or SKYPE/Facetime contact between the Applicant and the child is hereby suspended pending the outcome of the trial before Justice Pawagi.
Should either party seek the costs of this motion, then he or she shall provide written submissions regarding costs, to be served and delivered no later than 10 days from the date of this Order. Any response to be delivered 7 days later, also in writing. The cost submissions should not be longer than three (3) single spaced pages, not including any bill of costs or offers to settle attached.
[2] I received all of the parties' written submissions on or about December 4, 2017. The Applicant Mr. Loftus seeks the full recovery of his costs in the amount of $6,724.06, including HST, to be payable forthwith.
The Law
[3] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.
(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.
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
(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.
[4] Rule 24 (11) provides a further list of factors that 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 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. O. Reg. 114/99, r. 24 (11).
[5] Rule 18(14) and 18(16) of the Family Law Rules, which address the cost consequences of offers to settle, provide the following:
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:
If the offer relates to a motion, it is made at least one day before the motion date.
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.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
18 (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).
[6] Subrule 18(16) permits the court to go beyond the strict conditions set out in subrule (14) and award partial or full recovery costs even though subrule (14) does not apply.
[7] In Serra v. Serra, 2009 ONCA 395, at paragraph 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 behaviour by litigants.
[8] Rule 24 created a new framework for determining costs in family law proceedings. The presumptive nature of Rule 24 has significantly curtailed the court's discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in C.A.M. v. D.M. held that while the Rules have not completely removed a judge's discretion, the Rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs (paragraph 40). Courts must not only decide liability for costs, but also the amount of those costs.
[9] 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 et al. v. Public Accountants Council for the Province of Ontario, 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.
[10] In Delellis v. Delellis and Delellis, at paragraph 9, Justice David R. Aston states the following:
"… 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..."
Analysis
[11] It is not disputed that the Applicant Mr. Loftus was almost entirely successful on the motions before me. The primary issue to be addressed on the motions was father's request for November and Christmas access. The mother would not agree to any access prior to the return of the trial in this matter. The first four days of trial were heard before Justice M. Pawagi on October 3, 4, 5 and 16, 2017. The trial was scheduled to resume before Justice Pawagi on December 27 and 28, 2017.
[12] I heard the Applicant's motion for November and Christmas access as it would not be appropriate for Justice Pawagi to be hearing mid-trial motions for access on the very issue to be determined by her on a final basis. I also heard the motion for summer access brought by the Applicant and was therefore familiar with some of the background facts and the parties.
[13] A lengthy motion for access was heard before me. A second attendance was required to release my decision orally given the time constraints. The parties filed lengthy materials. The issue was understandably, extremely important to both parties.
[14] Ms Nicoll is a family law practitioner who was called to the bar in 1984 and has approximately 33 years experience of family law experience. She practices exclusively in the area of family law. In the bill of costs submitted, her hourly rate is set at $400.00 per hour on a full recovery scale and $300.00 per hour on a partial recovery scale. This is a reasonable hourly rate for someone of Ms Nicoll's skill and experience. Ms Nicoll incurred approximately 13.5 hours for preparation and attendance time for this motion, again, a reasonable period of time.
[15] However, I am not prepared to grant costs on a full recovery basis. Neither party served an offer to settle in these proceedings. The failure to serve an offer to settle is an important factor that I should take into consideration on assessing costs, particularly given the requirements of Rule 18 of the Family Law Rules and the overall objectives and Rule 24(5) of the Family Law Rules, which provides that the failure to make an offer to settle is a factor that the court must consider in determining whether a party acted reasonably.
[16] Justice Stanley Sherr states the following in J.V.M. v. F.D.P., 2011 ONCJ 616, and I adopt this reasoning in assessing the costs in these proceedings:
"I was not provided with an offer to settle by either party…The failure to make an offer to settle much earlier by either party is unreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (subrule 2(2)). This includes taking appropriate steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an offer to settle will be an adverse factor when assessing costs."
[17] Ms Nicoll submits that the Applicant did not serve an offer to settle because one day after the last day of the ongoing trial in this matter, counsel for the mother faxed a letter advising that the mother was ceasing court ordered (on consent) contact between the child and the Applicant. Respectfully, this position by the mother does not obviate the Applicant from making a Rule 18 Offer to Settle, given the cost consequences triggered by Rule 18 Offers to Settle. However, the mother's position was unreasonable given the previous lengthy ruling that I made on the issue of suspending access pending the trial.
[18] I also take into consideration that the Respondent mother is the primary caregiver of the child and she is not receiving any child support from the applicant.
The Order
[19] Taking into account all of these factors, the respondent mother, Ms Chamberlain, shall be required to pay the applicant, Mr. Loftus' costs fixed at $3,000.00 inclusive of fees, disbursements and HST, to be payable forthwith, or no later than 30 days from the date of this order.
Justice Sheilagh O'Connell
DATE: January 22, 2018