ONTARIO COURT OF JUSTICE
CITATION: Forlippa v. Khabemba, 2019 ONCJ 170
DATE: March 26, 2019
COURT FILE No.: Toronto D21605/18
BETWEEN:
TAMMY LYNN FORLIPPA
Applicant
— AND —
BRICE MBUYI KHABEMBA
Respondent
Before Justice Roselyn Zisman
Heard in Chambers
Reasons for Judgment released on March 26, 2019
Michael Weisbrot .......................................................................... counsel for the applicant
Stephanie Okola ...................................................................... counsel for the respondent
COST ENDORSEMENT
Zisman, J.:
Introduction
[1] This is my cost decision arising from a temporary motion heard on January 4th, 2019 with respect to custody, decision making regarding school and parenting arrangements for the two children of the relationship and child support.
[2] The court delivered an oral decision and the parties were permitted to serve and file written cost submissions which have now been received by the court.
Background
[3] The parties are the parents of twins B. and M. born on […], 2015.
[4] The parties separated in April 2017 but lived in the same residence until December 2017 when the Respondent (“father”) moved out of their home in Scarborough to Whitby. Prior to the mother commencing court proceedings the children were in a shared parenting arrangement. However, after the father moved out of the jurisdiction, it was the mother’s position that the shared parenting arrangement was no longer workable as the father was frequently late bringing the children to daycare. Further the parties disagreed on the school and the before and after care program that the children were to be enrolled in for the following school year.
[5] The parties and counsel attended at a case conference on December 10, 2018. The parties entered into a consent order for disclosure but the parties could not resolve any other issues. Costs were reserved.
[6] Due to the need to register the children for school and for a before and after care program a short return date was set for a motion to be heard on January 4th, 2019. Counsel agreed that the mother would serve her motion materials by December 27th with the father’s responding materials by December 31st and any reply by the mother on January 2nd. Counsel also agreed that the motion materials could be served by email. All motion materials were to be filed with the court on January 2nd.
[7] Counsel for the mother served the motion materials as ordered by December 27th. However, counsel for the father took the position that the affidavit was seeking relief not requested in the Notice of Motion and served a Cross-Motion along with an affidavit that including exhibits totalled 60 pages. The father’s motion materials were not sent by email until December 31st at 6:47 p.m. However, the email bounced back and was then resent at 9:00 p.m. and received at 9:09 p.m. As the office of the mother’s counsel was already closed on December 31st and also closed on January 1st, which was also a statutory holiday, the materials were not effectively served until January 2nd.
[8] Counsel for the mother served a severable offer to settle on January 2nd that was not accepted by the father.
[9] Counsel for the father served a non-severable offer to settle on January 3rd that was not accepted by the mother.
[10] The motion proceeded on January 4th as scheduled. Although the father was not permitted to proceed on his cross-motion, which in any event was simply setting out his position on the various issues, he was entitled to rely on his affidavit in spite of the short service.
Position of the mother
[11] It is the position of the mother that she was wholly successful on the motion. It is submitted that she acted in a reasonable manner throughout whereas it is submitted that the father acted in bad faith and that the fees incurred both for the case conference and the motion were a result of the father’s deceptive and uncooperative conduct.
[12] Counsel for the mother seeks costs of the motion “on a full indemnity basis” of $11,126.50 comprised of $3,800.20 for the case conference and $7,326.36 for the motion or in the alternative, “on a substantial indemnity basis” costs of $8,901.23 comprised of $3,040.15 for the case conference and $5,861.08 for the motion.
Position of the father
[13] It is the position of the father that there was a mixed result on the motion and therefore no costs should be ordered.
[14] It is submitted that there should be no order for costs for the case conference as the parties came to a consent regarding disclosure and the parties required the guidance of the court at the case conference prior to resolving any of the issues.
[15] It is submitted that there was no bad faith at any time on the part of the father.
[16] It is submitted that the father acted reasonably in that he consented to Part D of the mother’s offer to settle relating to a mutual non-removal order prior to the motion being argued.
[17] It is also submitted that the parties are of modest means and incurred the expense of retaining counsel in order to resolve the parenting issues on an expedited basis and any cost order would be devastating for the father.
Comparison of offers to settle to order
[18] The mother was overall the more successful party but as there were multiple issues it is helpful to examine each issue, the offers to settle with respect to each issue and the order made to determine the cost consequences.
[19] A summary of major issues on the motion and each party’s positions on the motion that did not differ from their offer to settle is as follows:
Issue
Mother’s offer to settle
Father’s offer to settle
Order made
Custody and primary residence
Sole custody and Primary residence
Joint custody
Sole custody and primary residence to mother
Decision making re school and child care
To be enrolled in […] School including before and after care
To be enrolled in French immersion
Children to be enrolled in […] School including before and after child care program
Access
Alternate week-end Friday to Sunday to be extended if statutory holiday
Shared parenting on 3-4-4-3 schedule
Alternate week-end from Friday to Monday extended on statutory holiday; access suspended until father provides proof valid driver’s licence
Third party pick up
No third party to pick up of drop off children without mother’s written consent
Either party entitled to name 1 designate for pick up and drop off children
Father’s sister or mother permitted to pick up or drop off children at daycare only if produce valid driver’s licences
Child support
On without prejudice basis pending disclosure $608.00 per month based on $40,800
Set off
Father to pay $608.00 per month
Section 7 expenses
On without prejudice basis pending disclosure 50% of cost
Proportionate sharing of section 7 expenses
Both parties to pay 50% of daycare expenses
Non-removal
Neither party remove without prior consent or court order
Neither party remove without prior consent except of travel 48 hours or less in U.S. or Canada, itinerary and not interfere with other parent’s parenting time; for other travel consent necessary with itinerary
Father accepted mother’s proposal on day of motion
[20] The main issues on this motion were the issue of custody and primary residence. From those determinations flowed the right to make the imminent decision with respect to what school and what before and after care program the children would attend and from the determination of the parenting schedule flowed the quantum of child support payable.
[21] The mother was wholly successful on the issues of custody and decision making. Although the mother was not wholly successful on the precise parenting schedule as the father received more access that she offered, there were conditions the court attached to the father’s access that were not attached to the mother’s offer to settle. I find that the mother was more successful than the father on the access issue.
[22] During submissions, father’s counsel agreed that the father pay child support of $608.00 per month as requested by the mother. But since he had not accepted the mother’s offer to settle the issue of child support prior to trial, the mother was also more successful on this issue.
[23] I find that the mother was overall the successful party and is therefore entitled to costs.
General Principles
[24] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court.
[25] Family Law Rules (FLR) 24 sets out a framework for awarding costs for family law cases.
[26] In the case of Mattina v. Mattina[^1] the Ontario Court of Appeal has confirmed that modern family cost rules are designed to foster four fundamental purposes:
(1) to partially indemnify successful litigants;
(2) to encourage settlement;
(3) to discourage and sanction inappropriate behaviour by litigants; and
(4) to ensure that cases are dealt with justly pursuant to subrule 2 (2) of the FLR.
[27] I am also mindful that 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 v. Public Council[^2] 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.
[28] FLR 24(1) creates a presumption of costs in favour of the successful party.[^3] Consideration of success is the starting point in determining costs.[^4]
[29] 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. The position each party took at trial should also be examined.[^5]
[30] A cost award is subject to the factors listed in FLR 24(12), the directions set out under FLR 24(4) (unreasonable conduct), FLR 24(8) (bad faith) and FLR 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party.[^6]
[31] FLR 24(12)[^7] which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award.
[32] FLR 24(12) provides as follows:
(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.
[33] FLR 24(5) provides guidance on how to evaluate reasonableness:
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.
[34] Offers to settle play an integral role in saving time and expenses by promoting settlements, focusing parties and often narrowing the issues in dispute. Severable offers to settle or separate offers to settle specific issues are particularly helpful in attempts to settle cases.
[35] The recent case of Beaver and Hill[^8], wherein the Ontario Court of Appeal indicated that offers to settle were not relevant on the issue of costs dealt with a case where there was no compromise and any offer to settle would have been a capitalization. However, in most family law cases there are compromises that can be made. Offers to settle therefore remain important in any consideration of the issue of costs.
[36] The consequences of an offer to settle are set out in FLR 18(14) as follows:
(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.
Bad faith or unreasonable behaviour
[37] It is submitted by counsel on behalf of the mother that the father acted in bad faith.
[38] Pursuant to FLR 24 (8) if a party has acted in bad faith, the court shall decide costs on a full recovery basis and order the party to pay them immediately.
[39] But FLR 24 (8) requires a fairly high threshold of egregious behaviour and as such a finding of bad faith is rarely made.[^9] Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation.[^10] To find bad faith the court must find some element of malice or intent to harm.
There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggest their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. [^11]
Application of legal principles to the facts
[40] It is submitted by counsel on behalf of the mother that in family law cases the preferable approach is to have costs generally approach full recovery as long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. Counsel relies on the cases of Biant v. Sagoo[^12] and Berta v. Berta.[^13]
[41] However, as the Court of Appeal has now made clear in the recent cases of Mattina v. Mattina and Beaver v. Hill, supra, the cases of Biant v. Sagoo and Berta v. Berta have been misinterpreted. The Court of Appeal has clearly stated that there is no provision in the FLR that provides for a general approach of "close to full recovery" costs.
[42] The FLR does not use the terms “partial or substantial indemnity” of costs. Rather the FLR sets out factors that the court should consider in making a cost order.
[43] The FLR only expressly contemplate full recovery costs in specific circumstances that is, where a party has behaved unreasonably, in bad faith or has obtained an order that is more favourable than an offer to settle under FLR 18(14).
[44] In this case, it is submitted that the father acted in bad faith for the following reasons.
[45] Firstly, prior to the commencement of this proceeding the father removed the children to Montreal for a week-end despite the mother telling him on multiple occasions that she was not agreeable. The father acted unilaterally and in spite of the mother’s concerns. It was a direct result of the father’ actions in removing the children that prompted the mother to commence court proceedings.
[46] Secondly, the father refused to cooperate in formalizing a parenting schedule and as a result the mother was forced to commence court proceedings.
[47] Thirdly, the father refused to produce his driver’s licence in order to confirm that his licence was not under suspension. The father submits that he has produced his licence. However, at the time the motion was argued it had not been produced. I have re-examined the father’s affidavit field on the motion and a copy of proof of a valid licence was not attached as I would have expected as the issue was raised in the mother’s affidavit.
[48] Fourthly, the father tried to bring a cross-motion by “ambush”. It was confirmed in the timetable that counsel agreed upon and in the Confirmation form father’s counsel filed that she would only be filing a responding affidavit but instead a Notice of Motion with 12 grounds of relief was served along with an affidavit that with all exhibits totaled 60 pages. The materials were not only served after the timetable agreed to by counsel but served on New Years’ Eve at 9:09 p.m.
[49] Fifthly, although the father accepted the non-removal provision in the mother’s offer to settle he only did so just before the motion was argued and as a result no time was saved as the mother’s counsel had to prepare to argue this issue. Similarly by accepting during submissions mother’s counsel’s position regarding the amount of child support the father was required to pay there was no time savings.
[50] Although I do not find that the father acted in bad faith, I find that he acted unreasonably. By removing the children, even for a week-end, knowing that the mother did not consent, he began this case on an unnecessary litigious path. His refusal to recognize that by moving away he created a situation where the shared parenting arrangement became problematic was unrealistic. Further, his refusal to provide proof that he had a valid driver’s licence after numerous requests to do so created an atmosphere of distrust that made attempts at resolution extremely difficult.
[51] However, the most egregious behaviour was the serving of his 60 page affidavit after the timelines agreed upon and after hours on New Years’ Eve. Just because parties have access to their emails outside of office hours should not permit opposing counsel to think that service in this manner after hours and on a holiday is appropriate.
[52] Finally the father acted unreasonably in not accepting at least portions of the mother’s severable offer to settle. To accept the non-removal portion, just before the motion is argued does not show that he acted reasonably as alleged by counsel.
[53] The mother acted reasonably in that she attempted to settle the issues prior to commencing the court proceedings through correspondence with the father and his counsel and thereafter she tried to settle by serving a severable offer to settle.
[54] In determining the appropriate amount of costs I have considered the reasonableness and proportionality of the costs claimed in relation to the factors in FLR 24 (12) as they relate to the importance and complexity of the issues.
[55] As indicated the mother acted reasonably both prior and during the court proceedings whereas I find that the father did not act reasonably;
[56] Although the issues were extremely important to the parties, the issues were not complex. However, the volume of materials filed did require more time than might have otherwise been required. The time spent by mother’s counsel is reasonable both with respect to the case conference and the motion.
[57] With respect to costs at the case conference there is no basis for the mother to be compensated on a full recovery basis. The only issue resolved at the case conference was the issue of disclosure. I agree with the submissions of father’s counsel that much of the disclosure requested should have been requested prior to the case conference. Although it was important for the parties to obtain the input of the court at the case conference, it does not have appeared to have had any effect on the father’s position. His offer to settle was not severable and accordingly the mother could not have accepted portions of the offer to settle that would have been acceptable to her for example, the provisions relating to holiday access.
[58] As ultimately the mother was successful on the motion, I find that some of the issues could have been resolved at the case conference without the necessity of the motion proceeding on all of the issues. Therefore the mother should on that basis be entitled to some costs of the case conference as much more could have been accomplished if not for the positions taken by the father.
[59] The result obtained on the main issues of custody, decision making and child support issues were exactly on the terms requested by the mother in her offer to settle. The majority of the time spent in submissions on the motion and the majority of the contents of the affidavit material filed by both parties dealt with the parenting issues. The mother is entitled to full recovery of her costs for those issues as her offer to settle was severable and her offer to settle met all of the requirements of FLR 18 (14).
[60] However, FLR 18 (14) still provides the court with discretion to order less than full recovery even if the offer to settle meets all of the requirements of that rule.
[61] An hourly rate of $315 is claimed for both mother’s counsel who was only called to the bar in 2016 and for junior counsel who was only called to the bar in 2017. I find their hourly rate of $315 to be excessive for their years of experience. By contrast the father’s counsel was called to the bar in 2014 and her hourly rate is $250. Further, I also find that the hourly rate of $205 for mother’s counsel’s clerk is excessive despite her 9 years of experience based on the nature of the work that was done.
[62] Counsel for the father also submitted her bill of costs. Her total bill of costs, that includes the time spent preparing and attending for the case conference and the motion, is $6,977.75.
[63] In proceeding with this motion the father must have considered that if he was not successful he could be required pay the mother’s costs for at least an amount similar to his own legal fees. It is especially important for litigants of modest means to take a realist assessment of their positions before incurring the expense of a contested motion.
[64] The disbursements claimed for the motion of $189.28 are reasonable. I would not allow any disbursements, at this stage, for the case conference as this is a necessary step in the proceedings and similar costs would be incurred by both parties.
[65] I find that a fair, reasonable and proportionate order of costs is $7,050.00 inclusive of disbursements for the motion and all applicable taxes.
[66] As the motion almost exclusively dealt with parenting issues I would not order that the Family Responsibility Office enforce the cost order a support order. However, it is incumbent on the father to make arrangements to pay this amount. As neither counsel made any proposal for payment by installments I would strongly urge counsel to work out a payment plan otherwise the full amount will be due and payable within 60 days.
[67] Order as follows:
The Respondent shall pay to the Applicant her costs for the case conference held on December 10, 2018 and the temporary motion heard on January 4, 2019 in the amount of $7,050.00 inclusive of disbursement costs for the motion and all applicable taxes. Unless otherwise agreed, the full amount shall be payable within 60 days.
Counsel for the Applicant shall prepare this Order and approval by counsel for the Respondent is dispensed with.
Released: March 26, 2019
Signed: Justice Roselyn Zisman
[^1]: 2018 ONCA 867 at para. 10 citing with approval Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22 and E.H. v. O.K., 2018 ONCJ 578, at para. 8 and Sambasivam v. Pulendrarajah, 2012 ONCJ 711 at para. 37. [^2]: (Ontario) (2004), 2004 14579 (ON CA), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.); Delellis v. Delellis, 2005 36447 (Ont. S.C.J.). [^3]: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94. [^4]: Sims-Howarth v. Bilcliffe (2000), 2000 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para. 1. [^5]: Lawson v. Lawson, 2008 23496 (ON SC), [2008] O.J. No. 1978 (SCJ). [^6]: Mattina v. Mattina at para 13; Berta v. Berta, ibid. [^7]: FLR 24(12) was amended in July 2018. [^8]: 2018 ONCA 840 at paras. 15-16. [^9]: S.(C.) v. S.(C.), 2007 20279 (ON SC), [2007] O.J. No. 2164 (Ont. S.C.J.). [^10]: Chomos v. Hamilton, 2016 ONSC 6232 at para. 45, and cases cited therein. [^11]: Supra, at paras 45-48 [^12]: 2001 ONSC 28137 at. para. 20. [^13]: ibid, at para 92 and 93.