Court Information

Ontario Court of Justice

Date: 2019-05-21

Court File No.: Woodstock D60/15

Parties

Between:

John Phillip Schaafsma Applicant

— AND —

Meghan Katherine Eaton Respondent

Before the Court

Justice S. E. J. Paull

Costs Submissions Heard: May 13, 2019

Reasons for Judgment Released: May 21, 2019

Counsel

James Battin — counsel for the applicant

Gary McQuaid — counsel for the respondent

Decision

PAULL J.:

[1] Before the court is the issue of costs brought by the respondent following trial in this matter which proceeded over two days between February 1, 2019 and March 25, 2019. Reasons for Judgment were released on April 8, 2019. In the Reasons the court directed that if the parties were not in agreement on the issue of costs a return date could be arranged with the trial coordinator for submissions on that issue.

[2] The parties provided written submissions. The respondent is seeking costs in the amount of $11,085 inclusive. The applicant submits that costs in the amount of $5,000 is the more appropriate sum.

Background and Positions of the Parties

[3] The parties are the parents of two children, Paige Elizabeth Schaafsma born […], 2010, and Brielle Marie Schaafsma born […], 2012.

[4] A prior proceeding was resolved between the parties on the basis of a final order dated June 29, 2017 made on consent which granted, in part, sole custody of the children to the respondent with regular access to the applicant.

[5] Following the order Ms. Eaton made applications to the Registrar General to change the children's surnames from "Schaafsma" to "Schaafsma Eaton". She served the applications as required on the respondent who did not reply to her but did bring the application for a prohibition on changing the names.

[6] At trial the applicant sought an order that the respondent be prohibited from changing the children's names, or alternatively, an order that if a change is permitted that it be hyphenated to ensure that his name remains used by the children. The respondent sought to have the application dismissed so she may proceed with her applications to the Registrar General to change the children's names to Schaafsma Eaton.

[7] The application was dismissed, thereby permitting the respondent to proceed with the name change applications filed with the Registrar General. The court also issued a prohibition on any further or other name change once the children's surnames were changed as requested by the respondent.

The Law

[8] Modern costs 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 under Rule 2(2) of the Family Law Rules. Mattina v. Mattina, 2018 ONCA 867.

[9] 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. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002 S.C.C., paragraph 25.

[10] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. 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. Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ). The position each party took at trial should also be examined.

[11] The Family Law Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded, although there is no obligation to make an offer to settle. Beaver v. Hill, 2018 ONCA 840.

[12] Sub-rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 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. Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an offer to settle will be an adverse factor when assessing costs.

[13] However, before the absence of an offer to settle can be used against a party, the situation has to be one where it is realistic to expect offers to settle to be made. Either/or cases are not conducive to offers to settle – there is no way to compromise. Beaver v. Hill, 2018 ONCA 840.

[14] In this case there is no indication of any offers to settle, however, the absence of any offers to settle should not be a factor for or against either party's position with respect to costs. The nature of the application for a prohibition on the name change by its very nature represented an either/or proposition which was not conducive to meaningful offers to settle.

[15] The respondent was clearly the successful party. The application was dismissed thereby permitting her to proceed with the name change applications filed with the Registrar General.

[16] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.

[17] An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. Berta v. Berta, 2015 ONCA 918 at para. 94.

[18] In making this decision the court has considered the factors set out in Rule 24(12) of the rules 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.

[19] Rule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24(12)(a)(i) above). It reads as follows:

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.

[20] Family law litigants are responsible for and accountable for the positions they take in the litigation. Heuss v. Surkos, 2004 ONCJ 141.

[21] The issue in this matter was not particularly complex, but was clearly important and significant to both parties in the context of this family.

[22] Counsel for the respondent included an itemized Bill of Costs which claimed a total of 32.7 hours of work for responding to the application and preparing for and conducting a trial which took place over two days.

[23] During this proceeding the applicant brought a motion seeking that the matter be traversed to the Superior Court of Justice, and the respondent brought a motion seeking that the application be dismissed. Both motions were disposed of on the same date and the court made an order that there be no costs regarding either motion. The Bill of Costs provided does not include time spent regarding these motions.

[24] The hourly rate of counsel for the respondent pursuant to the Bill of Costs is $300 per hour which is not unreasonable given his years of experience. Neither is the claim of 32.7 hours spent in responding to the application and preparing and conducting a trial unreasonable in the circumstances.

[25] While I am not making a finding that the applicant has behaved unreasonably in bringing this matter, he ought to have been aware that his prospects of success were limited in the circumstances of the law and the factual basis he offered and the court found at trial.

[26] One of the considerations in an assessment of costs is to fix costs in an amount that is "fair and reasonable" for the unsuccessful party to pay in a particular proceeding: Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.) at para. 32, aff'd 2010 ONCA 326 at para. 4.

[27] The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which disbursement is sought) and the importance or monetary value of the issues at stake.

[28] Overall, the issue in this matter was not particularly complex but was clearly important in the context of the children and this family. The respondent was entirely successful and the amounts claimed in her counsel's Bill of Costs are both reasonable in the circumstances and proportional to the issue involved given its importance to both parties. The fact that there were no offers to settle ought not to reflect on either party's position on costs given the either/or proposition that was involved in this application.

[29] Having considered all the factors outlined herein, the respondent is entitled to her costs as outlined in the Bill of Costs. As such, an order shall issue that costs be fixed in the amount of $11,085 inclusive, payable by the applicant to the respondent forthwith.

Released: May 17, 2019

Signed: Justice S. E. J. Paull