Court File and Parties
Court File No.: D48675/09
Date: May 29, 2020
Ontario Court of Justice
Between:
Matthew Ian Berge Applicant
— AND —
Alicia Soerensen Respondent
Before: Justice Roselyn Zisman
Heard: By written submissions
Reasons for Judgment released on: May 29, 2020
Counsel:
- Christina Doris, counsel for the applicant
- Alicia Soerensen, on her own behalf
Costs Decision
Zisman, J.:
Introduction and Background
[1] The Applicant (father) seeks costs regarding a Motion to Change commenced by the Respondent (mother) that was ultimately settled at a case conference. The father seeks costs on a full indemnity basis in the amount of $18,826.65 on the basis that he was successful, he served an offer to settle, and the mother behaved unreasonably which caused unnecessary legal costs for him.
[2] The parties have a long history of litigation with respect to their son who is now 11 years old. There are several previous orders that are relevant to understand the context of the proceedings.
[3] The parties entered into a temporary consent order on August 31, 2009 for joint custody. That order was never made final despite the numerous court attendances and orders subsequently dealing with child support issues, travel, decision making and parenting time.
[4] The parties entered into another temporary order on September 4, 2010 that provided for an alternate week schedule.
[5] The final order of January 25, 2012 provided that the child attend junior kindergarten at a school within a one kilometre radius of Yonge Street and Sheppard Avenue unless the parties agreed to another school. Further, the order provided that the parenting schedule not be changed subject to specific provisions in the order with respect to various holidays. This final order did not refer to the previous temporary orders.
[6] The mother's Motion to Change sought to vary the January 25, 2012 order and another order of April 23, 2013 that dealt with travel issues.
[7] On August 30, 2019 the mother brought an urgent motion to change the child's school without notice or proper service to the father. Justice Carole Curtis heard the motion and endorsed that it did not meet the test for an urgent motion or for a motion prior to a case conference and ordered the mother to serve the father. It is unclear from the endorsement if the motion was dismissed or just adjourned as Justice Curtis set the next date for a case conference.
[8] On September 5, 2019, Justice Curtis held a case conference. Her endorsement indicates that the issue of the child's school, safety issues and next steps were discussed. She further cautioned both parties to communicate and cooperate if they expected the joint custody order to survive.
[9] Father's counsel, in her costs submissions repeats several statements made by Justice Curtis about the merits of the mother's position. As this was a case conference those comments are confidential and should not be repeated. I do not rely on any of those statements.
[10] The mother also filed an Amended Motion to Change seeking to change the temporary orders of January 25, 2012 and April 23, 2013. The Amended Motion to Change was 14 pages long seeking to make changes to not only the child's school, but with respect to the issue of custody, travel issues, dispute resolution protocol.
[11] The matter was before Justice Curtis again on November 20, 2019 for a further case conference. The mother filed an Amended Notice of Motion and further affidavit.
[12] Justice Curtis endorsement states that the mother sought in her Amended Motion to Change to alter the joint custody and parenting arrangements relying on the fact, it appears for the first time, that the order of August 31, 2009 was only a temporary order. The endorsement states that a case conference was held on the threshold issue of the test for a material change in circumstances and the next steps to be taken. The parties were again cautioned the court may decide which parent can make the decision about school instead of the court determining that issue.
[13] The case was adjourned for another case conference before me on January 11, 2020. Both parties filed briefs and the parties were able to enter into comprehensive Minutes of Settlement to settle all issues on a final basis except for the issue of costs. The endorsement provided that if not settled, father's counsel was to submit her costs submissions within 30 days and the mother's response to be submitted 30 days following. The submissions were to be submitted by 14B.
[14] Father's counsel served the mother with her costs submissions on February 18, 2020. No cost submissions or any other correspondence was received from the mother.
Applicable Legal Principles
[15] 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.
[16] Subrule 24 of the Family Law Rules (FLR) sets out a framework for awarding costs for family law cases.
[17] In the case of Mattina v. Mattina 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.
[18] 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 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.
[19] Subrule 24(1) FLR creates a presumption of costs in favour of the successful party.
[20] Consideration of success is the starting point in determining costs.
[21] 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.
[22] The father seeks full indemnity of costs in part based on the often-cited case of Biant v. Sagoo. In that case, the court stated that the preferable approach to costs in family law cases was for full recovery so long as the successful party acted reasonably and the costs claimed are proportional to the issues and the result.
[23] However, that approach has since been disapproved by the Ontario Court of Appeal in Beaver v. Hill. Counsel should be familiar with current case law and not rely on cases that have distinguished and not followed. I note that there have been numerous cases since the decision of Beaver v. Hill was released in October 2018.
[24] The Ontario Court of Appeal in the case of Beaver v. Hill clarified several aspects of the cost rules namely, that there is no provision in the FLR that provides for a general approach of fixing costs at "close to full recovery" and that "proportionality and reasonableness are the touchstone consideration" to be applied in fixing the amount of costs.
[25] The court held that 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.
[26] FLR 24(12) which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award.
[27] 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.
[28] 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.
Discussion
[29] The father was successful as the case settled on almost exactly the terms set out in his Offer to Settle. Even though the case settled, I accept the submissions of the father's counsel that this is a case were costs are appropriate.
[30] Courts should encourage settlements in order to avoid ongoing litigation costs and therefore costs when a case is settled should only be ordered for compelling reasons. The most important considerations with respect to determining entitlement and quantum of costs when a case settles are the reasonableness and timeliness of the parties' respective offers to settle.
[31] In this case, the father served a severable offer to settle on October 31, 2019 even before he served his Response to the mother's Motion to Change. The mother served her offer to settle on November 10, 2019. The mother's offer to settle was not severable.
[32] The Minutes of Settlement that the parties entered into on January 11, 2020 mirrored the father's offer to settle with a few minor changes. Most importantly the parties agreed to the main issues that is, that the parties continue their 10-year custody and access arrangement and the child continue enrollment in his current school. As a result, Motion to Change initiated by the mother was unnecessary as were the several case conferences that followed.
[33] This is a case where the mother's ill-conceived litigation caused the father to incur substantial and unnecessary legal costs. The mother commenced this Motion to Change without any legal basis. Even if the mother wished to fine tune some of the details of the outstanding provisions regarding holiday access and communication there were less costly methods of doing so. For these reasons and despite the settlement, I find that this is a proper case for costs to be payable by the mother.
[34] The father acted reasonably. He served a severable offer to settle dated October 31, 2019.
[35] The mother served an offer to settle dated November 10, 2019. The offer to settle was not severable. She agreed that joint custody and the week about schedule continue and that the child continue to be enrolled in his current school. However, she added other clauses with respect to the school issue. There were many other provisions with respect to communication, decision making and a holiday parenting schedule.
[36] I find that overall the mother did not act reasonably in initiating and then continuing with her Motion to Change. Her pleadings were confusing as to which order she sought to change. It was not even until the case conference held on November 20, 2019 that the issue was raised that the order of August 31, 2009, that ordered joint custody and shared parenting time, was only a temporary order.
[37] Counsel for the father has attached her detailed Bill of Costs for her entire representation of the father since the commencement of the proceedings. However, costs were not addressed or reserved in any of the attendances before Justice Curtis.
[38] Pursuant to subrule 24(11) FLR, a trial judge has the jurisdiction to determine costs of earlier steps in the proceeding.
[39] However, subrule 24(10) FLR, continues to provide that costs should be determined promptly after dealing with a step in the proceeding. It is reasonable to presume that a judge who does not determine or reserve costs of that step does not find merit in awarding costs due to the conduct of the parties during that step. If there is a specific reason why costs were not awarded or reserved, then without an endorsement explaining why costs were not addressed it would be almost impossible for the trial judge to fairly deal with the cost of that step.
[40] I adopt the reasoning of Justice Kurz in Cameron v. Cameron and Justice Sherr in T.L. v. D.S. that a trial judge should only grant costs of a previous step in one of the following circumstances:
a) Costs have been reserved to the trial judge
b) When, considering subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over the step or
c) In exceptional circumstances
[41] If a party does not seek costs for a previous step, then the onus rests on counsel to explain why costs should now be granted.
[42] Counsel for the father did not provide any evidence to meet the onus on her so that the court would now order costs for prior steps.
[43] However, costs can be ordered for time spent that does not relate to any specific step in a proceeding such at interviews with a party, drafting pleadings, correspondence, drafting the offer to settle, preparation of the costs submissions and preparation of court orders.
[44] Father's counsel was called to the bar in 2012 and her hourly rate is $425 and her law student's hourly rate is $195. Although both rates appear to be somewhat high, I would not interfere with the right of the father to hire counsel of his choice at these hourly rates.
[45] I find that it is reasonable to allocate 10.1 hours spent on matters not related to any particular step in the proceeding.
[46] I also find that the father is entitled to his costs of the case conference held before me on January 20, 2020 as the case should have been settled without the necessity of preparing briefs and attending court.
[47] In total I find that 19.2 hours is a reasonable amount of time to have been spent on this case and is proportionate the issues.
[48] However, the student's time of 5 hours to prepare a chart of a comparison of the parties' offer to settle and the endorsement was totally unnecessary and unreasonable. The parties made a few handwritten changes to the father's offer to settle that was then endorsed by the court as a consent order.
[49] The expenses for the usual disbursements for photocopies, faxes, process server of $483.92 are reasonable.
[50] Further, just because the mother was self-represented is also not an excuse for her to assume she could continue to litigate without any consequences. As affirmed in the case of Balsmeier v. Balsmeier, "Those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings".
[51] Despite the fact that he father served a comprehensive offer to settle that essentially mirrored the consent order that the parties entered, I do not find that this is a proper case for full recovery of all of the time spent.
[52] I would only order costs for the unnecessary attendance before me on January 20, 2020 and for the time spent on items not related to a specific step in the proceeding. The father did benefit by the mother commencing this motion to change, despite the fact that it was totally misconceived, as the final order did clarify some issues for the parties so that the joint custody and shared parenting arrangement may be less conflictual in the future.
[53] In all of the circumstances I find that a cost order of $8,644.00 is reasonable and proportionate to the issues and takes into consideration the mother's ability to pay.
[54] I am not aware of the impact that COVID-19 has had on the mother income or ability to pay costs at this time. But in all of the circumstances I would defer the payment for several months and order that this full amount will be payable by November 30, 2020 unless the parties come to another arrangement.
[55] Order as follows:
Order
The Respondent Alicia Soerensen shall pay costs of $8,644.00 to the Applicant Matthew Ian Berge.
Such costs to be payable in full by November 30, 2020 unless the parties agree on another arrangement.
Released: May 29, 2020
Signed: Justice Roselyn Zisman
