Court File and Parties

Date: September 27, 2018

Court File No.: D20927/18

Ontario Court of Justice

Between:

J.N.M.

JERROD K. GROSSMAN, for the APPLICANT

APPLICANT

- and -

A.T.

JAMES H. HERBERT, for the RESPONDENT

RESPONDENT

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

[1] On August 29, 2018, the court released its decision arising from motions brought by both parties about the September, 2018 school and daycare placements for their two children. See: J.N.M. v. A.T., 2018 ONCJ 585.

[2] The applicant (the father) seeks his costs of $4,000. The respondent (the mother) submits that no costs should be ordered.

Costs Principles

[3] 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.

[4] Sub rule 2(2) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711.

[5] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25.

[5] Subrule 24(1) 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.

[6] No offers to settle were made on these motions.

[7] This court wrote about the importance of making offers to settle in paragraphs 4-5 of Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774, as follows:

4 It was surprising that there were no formal offers to settle in this case. It is reflective of the polarity of the parties. It should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute.

5 There are consequences in the rules for not making or accepting reasonable offers to settle. Subrule 18(14) sets out the costs consequences of not accepting an offer to settle that is as good as or better than the final result. When determining the reasonableness of a party's behaviour in the case, clauses 24(5)(b) and (c) of the rules direct the court to examine the reasonableness of any offer made, withdrawn or not accepted. This does not preclude the court from examining the failure of a party to make an offer to settle.

[8] This court has also previously written that this principle is equally applicable to making offers to settle on motions. See: H.F. v. M.H., 2014 ONCJ 526.

[9] The failure of a party to make an offer to settle will usually be considered unreasonable behaviour and have adverse costs consequences on them.

[10] Subrule 24(6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.

Assessment of Success

[11] The court will next look at the positions that the parties took on the motions to determine who, if anyone, was the successful party.

[12] The father claims that he was the successful party. He had asked that the parties' older child (P.) attend at Bialik Hebrew Day School, a private school, starting in September, 2018. In the alternative, he asked that P. attend at the public school closest to his home. The mother asked that P. attend at the public school closest to her home. The court ordered that P. attend at the public school closer to the father's home.

[13] The father asked that the parties' younger child (M.) attend at a daycare closer to his home, starting in September, 2018 and then go to Bialik in September, 2020. The mother asked that M. attend at a daycare closer to her home. The court ordered that M. attend the daycare closer to the father's home. Since these were temporary motions it was premature to determine M.'s school placement for 2020, as requested by the father.

[14] In assessing success, the court notes that the main thrust of the motions was whether P. should attend at a private school or at a public school starting in September, 2018. The mother was successful on this issue – not due to the qualities of the respective schools, but because the logistics of sending P. to Bialik would expose the children to an unacceptable level of parental conflict and because the court was concerned that the mother would be marginalized as a parent if P. went to a Hebrew Day School.

[15] The court finds that success on the schooling issue for P. was equally divided. The mother was successful in having the child attend at a public school and the father was successful in the determination of what public school the child would attend.

[16] The father was more successful on the daycare placement issue for M. The child will go to the daycare closer to the father. The request by the father to have M. attend at Bialik in 2020 was not appropriate on a temporary motion and the court considered that the mother spent time responding to this request.

Costs Factors

[17] In making this decision, the court considered the factors set out in subrule 24(12), which reads as follows:

24(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[18] The court also considered subrule 24(5) which reads as follows:

Decision on Reasonableness

24(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.

Findings on Reasonableness

[19] The court, in its reasons for decision, made findings of unreasonable behaviour by the father. The court found that the father had been disrespectful of the mother and dismissive of her concern that her culture and heritage would not be given equal respect as his. He unilaterally enrolled P. in Bialik in March, 2018 without prior consultation with the mother. His disrespectful attitude was also reflected in texts and emails he sent to her and his presentation at court.

[20] Both parties were unreasonable by failing to make offers to settle.

[21] The court finds that the father's modest success on these motions with respect to M.'s daycare placement was offset by his unreasonable behaviour.

Costs Decision

[22] There will be no costs ordered.

Released: September 27, 2018

Justice S.B. Sherr