Court File and Parties

Court File No.: DFO-10-10298-01 A3 Date: 2018-10-04

Ontario Court of Justice

Re: Roberts, Natalie - Applicant And: Costa, Peter – Respondent

Before: Justice S. O'Connell

Counsel:

• Applicant, acting in person
• Ms Jen-Yii Liew - Counsel for the Respondent

Costs Endorsement

(In Chambers)

Introduction

[1] The Respondent, Peter Costa, requests his costs of the motion returnable June 25, 2018 on a full recovery basis in the amount of $9,213.18. In the alternative, he seeks his costs on a partial recovery basis in the amount of $7,370.54.

[2] The father served his costs submissions, along with his bill of costs on July 4, 2018. For reasons unknown to the court, the mother has chosen not to respond to those submissions. The court has given the mother ample opportunity to respond and is now prepared to proceed with the determination of the father's request.

Brief Background

[3] Mr. Costa brought his motion on an urgent basis on June 12, 2018 seeking an order directing that the Applicant mother, Ms Roberts, to comply with the Final Order dated February 23, 2018, in particular the following:

1. paragraph 44 regarding the summer holiday provisions;
2. paragraph 28 requiring the mother to use Our Family Wizard to communicate with the father;
3. paragraph 25 requiring the mother to comply with sharing and paying the cost of a parenting coordinator to address the holiday schedule, and other parenting issues arising from the Final Order;
4. paragraph 9 requiring the mother to ensure that Sofia attends school on a regular basis; and
5. paragraph 36, requiring the mother to provide a copy of the OCL report to the mother's psychiatrist, and other alleged breaches of the Final Order.

[4] In the father's motion, the father sought an order that the mother's access be suspended if she continues to refuse to comply with the provisions of the Final Order. During oral argument, the father indicated that he is not pursuing a suspension of the mother's access at this time, but he was very frustrated that he cannot plan his summer holidays with Sofia because the mother refuses to respond to his proposals. He was also very concerned about the number of school absences for Sofia while she is in the mother's care. Sofia is in an Individualized Education Plan (IEP) at her school because she has some challenges with reading and mathematics.

[5] The motion was originally scheduled for June 12, 2018. The mother was served with the motion materials on June 5, 2018. The mother confirmed that she received the materials on June 6, 2018, according to the evidence filed.

[6] The mother was granted an adjournment to file responding materials to June 25, 2018. The reasons for the relatively short adjournment was largely to address the summer holidays as the last day of school is June 28, 2018 and the mother had not responded to the request for a summer holiday schedule, despite being provided with the father's proposal on April 5, 2018 at the parties' last settlement conference in this matter.

[7] The matter returned before me on June 25, 2018. The mother had not yet prepared a response but the motion proceeded as the summer holiday schedule needed to be addressed before the end of school on June 28, 2018. Some other pressing issues were also addressed.

[8] Between June 12, 2018 and the return of the motion on June 25th, the court learned and both parties confirmed the following:

a. The mother has now complied with paragraph 28 of the Final Order and has signed up with "Our Family Wizard". She assured the Court that she will now start utilizing Our Family Wizard when she needs to communicate with the father, in accordance with paragraph 28 of the Final Order. She is not to communicate with the father except through counsel or Our Family Wizard, in accordance with paragraphs 27 and 28, except in case of an emergency as defined by the Final Order. This was an important provision that must be complied with given the enormously high conflict between these parties;

b. The mother also confirmed that she had provided a copy of the OCL Report to her psychiatrist in accordance with the Final Order.

[9] In Court on June 25th, the mother also signed Sofia's passport application before me, thereby permitting the father to obtain a passport for the child Sofia, to facilitate holiday access. The father advised that he will provide the passport to the mother when necessary for her family travel.

[10] Regarding summer and holiday access, the mother states that she was unaware that she had to provide her summer holiday proposal by May 31st in accordance with the Final Order. In reviewing the Final Order, the mother is actually correct that in even numbered years, it is the father that must provide his summer holiday proposal by May 31st and then the choice alternates between them so that the mother provides her chosen weeks by May 31st in odd numbered years.

[11] However, in any event, the father states that he provided his summer access proposal by April 5, 2018, (which the mother did confirm in Court) and which the Court confirmed in reviewing the materials. The father then sent a number of follow up emails through counsel and the mother had not responded by June 12th, the first date of the return of his motion.

[12] The mother acknowledged that she did not respond to these requests or respond to the April 5th summer holiday proposal. She did not seem to think that this was a problem.

[13] The father submits that he is entitled to his legal costs in an attempt to enforce the terms of the Final Order. He submits that although the mother eventually cured her breaches, she only did so after the father brought this motion and that he had to incur substantial legal fees as a result.

The Law and Governing Principles

[14] The starting point in addressing the issue of costs is Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43. Section 131 gives the court discretion as to determination of costs. However, that discretion is structured by Rule 24 of the Family Law Rules, O. Reg. 114/99 (all references to rules in this endorsement are to the Family Law Rules). Rule 24 governs the determination of costs in family law proceedings.

[15] The sections of Rule 24 relevant to the circumstances of this case are as follows:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(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. O. Reg. 114/99, r. 24 (4).

DECISION ON REASONABLENESS

(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. O. Reg. 114/99, r. 24 (5).

DIVIDED SUCCESS

(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).

BAD FAITH

(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. O. Reg. 114/99, r. 24 (8).

DECIDING COSTS

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.

(10.1) Revoked: O. Reg. 298/18, s. 14.

SAME

(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.

SETTING COSTS AMOUNTS

(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. O. Reg. 298/18, s. 14.

SUPPORTING MATERIALS

(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. O. Reg. 298/18, s. 14.

[16] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.), 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.

[17] 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.

[18] As noted above, 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, [2000] O.J. No. 330 (SCJ-Family Court). 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, [2008] O.J. No. 1978 (SCJ).

[19] Subrule 18 (14) reads as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

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:

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.

Application of the Law to the Circumstances of this Case

[20] The father did not serve an offer to settle in this case, so he is not entitled to full recovery of costs.

[21] However, it is clear that the father had to bring this motion because the mother had not complied with the terms of the Final Order. The father was successful in ensuring that the mother comply with the terms of the Final Order.

[22] Although the mother eventually cured most of her breaches of the Final Order, she only did so after the father brought his urgent motion. The mother did not behave reasonably.

[23] The Final Order also provided that if the parties could not agree on a holiday schedule, then pursuant to paragraph 25 of the Final Order, they shall appoint a parenting coordinator, to mediate and arbitrate these issues. During the argument of the motion, the mother confirmed in court on both June 12th, and June 25th that she agreed with the choice of Ms Marcie Goldhar to be appointed as the parenting coordinator. However, she made it very clear that she was not going to pay her share of this costs, which is approximately $1,000.00 of the retainer fee, subject to any reapportionment by the parenting coordinator.

[24] The mother also acknowledged agreeing to this provision in the Final Order at paragraph 25 of the Final Order, after a lengthy and comprehensive negotiation while she was represented by counsel and with the court's assistance. The mother had legal counsel and independent legal advice prior to signing the Final Minutes of Settlement which were the basis for the Final Order.

[25] After the Final Order was issued, the mother fired her counsel and indicated that she intended to bring a motion to set aside the Final Order. That was a number of months ago, and the mother has not done so. The Final Order remains in full force and effect. It was intended to bring finality to the parents, and most importantly to Sofia, the child.

[26] As a result the court was tasked on the motion with the decision regarding summer holidays and other issues because the mother refused to use Ms Goldhar as a mediator and arbitrator in accordance with the Final Order.

[27] The court stated the following at paragraphs 16, 18, and 19 of the Endorsement released June 26, 2018, following the motion:

"16. The father has had to bring this motion because the mother has not complied with the terms of the Final Order and the court is now tasked with the decision regarding summer holidays and other issues because the mother refuses to pay for the parenting coordinator, who was delegated by the parties to assist in resolving and arbitrating this issue.

18. It is very unfortunate that the mother has not agreed to pay her proportionate share of Ms Goldhar's retainer as the parenting coordinator, in accordance with the Final Order. This motion could have been entirely avoided if the mother had complied with the Final Order and engaged the services of Ms Goldhar, which was the mother's choice for a parenting coordinator. It is also very unfortunate that the mother did not sign up for Our Family Wizard so that the parties could communicate effectively until the father brought this motion. The level of conflict and animosity between these parents makes it absolutely imperative that the mother comply with this term of the Final Order.

19. The Court is also concerned about Sofia's absences from school while in the mother's care. The last report card indicates that Sofia was absent 20.5 days for this school year to date. Ms Goldhar could also have assisted with this issue and made inquiries on behalf of both parents, including speaking to the teacher and the school principal if necessary. According to the mother, the school principal is not concerned about the absences and these are the regular absences due to illness and other issues. The father disagrees and believes that the number of absences is affecting Sofia's academic performance, particularly given her educational challenges and her IEP program."

[28] Although the mother has behaved unreasonably, the father is not entitled to his full recovery of costs. As indicated, the father did not serve a Rule 18 Offer to Settle.

[29] The court also considered the factors under Rule 24(12). The father's lawyer was called in 2013 and her hourly rate is $400.00 per hour. She spent approximately 18 hours on the preparation and attendance for the motion including two hours for the preparation of costs submissions. Although the time spent may have been reasonable for a lawyer of Ms Liew's experience, the hourly rate for a junior lawyer who was called in 2013 seemed high even by Toronto standards.

[30] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (Ont. C.A.), and Delellis v. Delellis and Delellis, [2005] O.J. No. 4345. 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."

[31] The mother regrettably did not respond to the father's cost submissions. However, the court still took into consideration that the mother will have difficulty paying the costs sought by the father. Throughout these proceedings the mother has raised her difficult financial circumstances and the impact of any financial penalty on her ability to provide for her daughter while she is in her care. The father does have significantly more financial resources than the mother. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.).

[32] However, a party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs, particularly when a party acts unreasonably. See: Snih v. Snih pars. 7-13.

[33] The court adopts the comments of Justice Heather McGee in Mohr v. Sweeney, 2016 ONSC 3238, 2016, where she writes, "those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings."

[34] Taking into account all of these considerations, an order shall go that the mother shall pay the father's costs fixed in the amount of $4,500.00, inclusive of fees, disbursements and HST, to be payable forthwith or no later than 45 days from the date of this Order.

Justice Sheilagh O'Connell

DATE: October 4, 2018