Court File and Parties

Ontario Court of Justice

Date: September 8, 2020

Court File No.: D48675/09

Between:

Applicant Matthew Ian Berge

— AND —

Respondent Alicia Soerensen

Before: Justice Roselyn Zisman

Heard: By written reasons

Reasons for Judgment released on: September 8, 2020

Counsel:

Christina Doris, counsel for the applicant
Alicia Soerensen, on her own behalf

Costs Endorsement

Zisman, J.:

Introduction

[1] On May 29, 2020 I released a cost judgment with respect to a Motion to Change commenced by the Respondent (mother). Counsel for the father had sought costs on a full indemnity basis of $18,826.65. The mother did not respond to the costs submissions made by the father. I ordered that the mother pay the Applicant (father) costs fixed in the amount of $8,644.00.

[2] The mother subsequently submitted a 14B motion to set aside the costs order on the basis that the mother had been told by the court staff that she could not file her responding costs submissions.

[3] On June 16, 2020, I set aside the costs order despite the fact that the mother had been served with the father's costs submissions on February 18th and had 30 days to respond. Even if the mother had been told by court staff that she could not file her response, she did not explain why she did not serve father's counsel with her responding costs submissions.

[4] Nevertheless, I felt it was important that the mother have an opportunity to serve and file her response. The endorsement of June 16th permitted the mother to serve and file her submissions by July 10th with such submissions not to exceed 3 pages with any offer to settle and her own bill of costs to be attached. In these unusual circumstances, counsel for the father was permitted to serve and file reply submissions.

[5] There were ongoing issues with respect to the mother filing cost submissions that exceeded the page limit.

[6] On July 14th I endorsed that the mother had emailed 180 pages to the court office. This email was rejected by court staff and not read by me. I again endorsed that the mother's submissions were not to exceed 3 pages and that only copies of offer to settle and any bill of costs were to be attached to the costs submissions. I clarified that copies of case law were not to be submitted and reference should be made in the costs submissions to the cases and the specific paragraphs she was relying upon. A further extension was granted.

[7] The mother's cost submissions and the father's reply submissions have now been received and reviewed.

Background

[8] 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 him to incur unnecessary legal costs.

[9] 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.

[10] 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.

[11] The parties entered into another temporary order on September 4, 2010 that provided for an alternate residential week schedule.

[12] 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.

[13] 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.

[14] 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.

[15] 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. The endorsement cautioned both parties to communicate and cooperate if they expected the joint custody order to survive.

[16] Father's counsel, in her costs submissions repeats several statements she alleges were made by Justice Curtis about the merits of the mother's position. The mother in her costs submissions also repeats several comments she alleges were made by Justice Curtis. As this was a case conference those comments are confidential and should not be repeated.[1] I do not rely on any of those statements.

[17] The mother then 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 with 68 different kinds of relief seeking to make changes to not only the child's school, but with respect to the issue of custody, travel issues, dispute resolution protocol. Importantly she does not plead that there has been a material change in circumstances.

[18] 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.

[19] 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.

[20] The case was adjourned for another case conference before me on January 10, 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.

[21] As indicated father's counsel served the mother on February 18th with her costs submissions.

[22] In the mother's costs submissions, she does not dispute that she never served father's counsel with her responding costs submissions as required within 30 days that is, by March 18th.

[23] She does not dispute that she did not correspond with father's counsel to ask for an extension to serve her response. Regardless of the pandemic or the information the mother alleges she received from the court staff, the mother could have served the father or made further inquiries of the court as to how she could file her response. Instead, I find that she simply waited until she received this court's decision before taking any steps. As a result the father has incurred further legal expenses.

Father's Position

[24] It is the father's position that he was successful and that the consent the parties reached on January 10, 2020 mirrored his offer to settle and as a result he is entitled to full recovery of his costs.

[25] It is submitted that the mother's Motion to Change was ill conceived as she did not demonstrate that there had been a material change of circumstances. On the primary issue of where the child should attend middle school, the school chosen complied with the requirements of the binding court order.

[26] Even though the mother had amended her Motion to Change to plead for relief that did not meet the threshold test of a material change of circumstance nevertheless, in order to attempt to settle the motion the father served a comprehensive offer to settle that ultimately was the basis for the final consent.

Mother's Position

1) Was there an offer and acceptance to settle costs?

[27] The mother raises for the first time that there was an offer and acceptance to settle costs. The mother submits that she accepted the father's offer to settle the issues of costs and accepted his offer that she pay $1,500. Counsel for the father wrote to the mother indicating that this offer was open for acceptance up to January 31, 2020.

[28] On January 23, 2020 the mother sent an email stating the she accepted the $1,500 but sought a payment plan.

[29] The father rejected the payment plan proposal. On February 3, 2020 father's counsel responded to the mother's email and advised that the parties did not have an agreement and he was proceeding to file his costs submissions.

[30] If as alleged by the mother there was an offer and acceptance, then she does not explain why she did not respond to father's counsel indicating that in her view there was a binding agreement nor does she explain why she did not pay the $1,500.

[31] Pursuant to FLR 18 (13)(b), if a party fails to carry out the terms of the accepted offer to settle, the other party may continue the case, which is what the father did by making his costs submissions to the court.

[32] I agree with the submissions of father's counsel. Firstly, costs submissions are not the appropriate place to raise this issue; secondly, the mother is only raising this issue now in hindsight after receiving the initial costs submissions and thirdly, there was no accepted offer.

2) Were these proceedings necessary?

[33] The mother then submits that the court proceeding she commenced were necessary as the father unilaterally enrolled the child in a new school contrary to the terms of the January 25, 2012 court order. That order stipulated that the child who was commencing junior kindergarten would be enrolled in a school in a specified catchment area.

[34] The child needed to be enrolled in a new school as he graduated from his primary school in June 2019. He was enrolled in a middle school in the specified catchment area.

[35] Contrary to the mother's submissions that she was unaware of the school the child would be attending, the ex parte motion she commenced stated that she wished to change the child's school because the Willowdale Public school where the child was enrolled did not have a before and after school program and the location of the school was not convenient to the mother.

[36] The father offered that the mother could pick up and drop off the child from his residence. The mother refused this option and instead commenced these ill-conceived court proceedings. In the final agreement that was reached, the mother agreed to pick up and drop at the father's home if she is unable to arrange before and after child care.

[37] Accordingly, it is abundantly clear that there was no need for the mother to commence this litigation.

[38] The mother repeats my comments from the May 29th costs decision that the father should not have attached and filed his offer to settle with his Response to the Motion to Change. However, despite this procedural error, the point is that even prior to filing his Response to the Motion to Change, the mother was aware of his offer to settle and it should have been considered by the mother as a means of resolving her Motion to Change without the father incurring further and unnecessary legal expenses.

[39] The mother submits that there were only minor differences in the parties' positions. However, then she does not explain why she did not attempt to resolve the issues once she reviewed the father's October 31st offer to settle and instead proceeded to the case conferences on November 20, 2019 and January 10, 2020. This again resulted in further unnecessary legal expenses being incurred by the father.

[40] The primary issue that was raised by the mother when she attempted to obtain an ex parte order was where the child would attend school. The father was successful on that issue. Thereafter, the mother continued the litigation with changes to the issues she sought to determine and without ever having met the legal burden of proving a change in circumstances.

[41] The mother submits that the final Minutes of Settlement reflected compromises by both sides and that would not have been achieved without court involvement. I do not agree with this submission; these minor issues could have been resolved through negotiations between counsel and the parties or by an attempt at mediation.

[42] I accept that the mother's procedural errors were not made in bad faith but nevertheless they caused the father to incur unnecessary legal expenses. Further, if there had been a finding of bad faith then the court would be in a position to order full recovery of costs. Something that was not done in the initial cost decision.

[43] However, the mother continuing to raise new issues is something that she continues to do as evidenced by her attempt to argue for the first time in her cost submissions that there was an accepted agreement on the issue of costs.

[44] At some point the mother cannot continue to rely on the fact that she is self represented to excuse the fact that she continues to require the father to respond to new issues she raises and that he continues to incur legal expenses as a result.

3) Should the court consider the mother's financial hardship?

[45] The mother submits that her financial situation in tenuous and that she earns a modest income. She does not disclose her income. She states that it is expensive to live in Toronto and that she owes credit card debts and over $71,500 in student loans. She submits that any increase in her monthly expenses would create a financial hardship for their child and would not be in the child's best interests.

[46] She submits that the father owes her his share of the special expenses incurred from 2013 to 2019 in the amount of $1,446.71. The mother requests if she is required to pay any costs this amount that should be offset from any cost order.

[47] However, in the order of January 10, 2020, in paragraph 22 the parties agreed that, "There are no child support arrears or s. 7 arrears owing as of the date of this agreement."

[48] Accordingly, there is no basis for the mother claiming that the father owes her any funds for special expenses prior to January 10, 2020. But it is yet another example of the mother raising new issues that have already been settled.

[49] As has been stated many times, 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 they have acted unreasonably and are the author of their own misfortune.

[50] In this case, the mother commenced and continued this litigation that was ill advised and without any regard for the financial hardship this would cause the father who is also of modest means and who is equally responsible for the child's care and for meeting the child's expenses.

Applicable Legal Principles

[51] 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.

[52] Subrule 24 of the Family Law Rules (FLR) sets out a framework for awarding costs for family law cases.

[53] 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.

[54] 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.

[55] Subrule 24(1) FLR creates a presumption of costs in favour of the successful party.[4]

[56] Consideration of success is the starting point in determining costs.[5]

[57] 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.[6]

[58] 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.

[59] 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.

[60] 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.

[61] 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.[9]

[62] FLR 24(12)[10] which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award.

[63] 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.

[64] 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

Discussion

[65] 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 father's counsel that this is a case were costs are appropriate.

[66] 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.[11]

[67] 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.[12]

[68] The mother filed a copy of her offer to settle dated November 10, 2019. The mother's offer to settle was also severable. However, the mother states it was only served on January 7, 2020 that is, just before the January 10th case conference.

[69] The Minutes of Settlement that the parties entered into on January 10, 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.

[70] 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.

[71] The father acted reasonably. He served a severable offer to settle dated October 31, 2019.

[72] 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.

[73] If the case had not settled, it is probable that the mother's Motion to Change would have been dismissed as the mother did not plead nor did the facts support that there was any material change of circumstances.

[74] Counsel for the father has attached her detailed Bill of Costs outlining 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.

[75] Pursuant to subrule 24 (11) FLR, a trial judge has the jurisdiction to determine costs of earlier steps in the proceeding.

[76] 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.

[77] 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

[78] 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.

[79] 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.

[80] However, costs can be ordered for time spent that does not relate to any specific step in a proceeding such as interviews with a party, drafting pleadings, correspondance, drafting the offer to settle, preparation of the costs submissions and preparation of court orders.

[81] 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.

[82] I find that it is reasonable to allocate 10.1 hours spent on matters not related to any particular step in the proceeding.

[83] I also find that the father is entitled to his costs of the case conference held before me on January 10, 2020 as the case should have been settled without the necessity of preparing briefs and attending court.

[84] 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.

[85] 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.

[86] The expenses for the usual disbursements for photocopies, faxes, process server of $483.92 are reasonable.

[87] 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".

[88] Despite the fact that the 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.

[89] I would only order costs for the unnecessary attendance before me on January 10, 2020 and for the time spent on items not related to a specific step in the proceeding.

[90] 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.

Conclusion

[91] Having received the initial cost decision dated May 29, 2020, I would have expected the mother to realize that it was probable that some costs would be ordered against her but she does not appear to have not taken any steps to deal with this eventuality.

[92] The mother did not provide any submissions on a payment plan and therefore I am not prepared to make any such order.

[93] Based on the mother's costs submissions, I find there is no basis to change the amount of costs fixed in the initial assessment of costs.

[94] The full recovery sought by the father was not granted and the amount of costs of $8,644.00 took into consideration the mother's financial circumstances and continues to be an amount that is reasonable and proportionate to the issues.

[95] Despite the fact that the mother has now had many months to organize her finances to arrange to pay a cost order, I will further extend the time for the mother to make this payment.

[96] If counsel for the father had requested further costs as a result of needing to now reply to the mother's costs submissions, I would have ordered some further costs. I find the father has continued to be reasonable in the manner that he has responded to this litigation.

[97] I would also caution the mother to seek legal advice before consider commencing any further Motions to Change as this may be an appropriate case to prevent the mother from commencing any further litigation until the costs order is paid and to require that she seek leave of the court before commencing any further litigation.

[98] Order as follows:

The Respondent Alicia Soerensen shall pay costs of $8,644.00 to the Applicant Matthew Ian Berge.
Such costs to be paid in full by January 5, 2021 unless the parties agree in writing on other arrangements.

Released: September 8, 2020

Signed: Justice Roselyn Zisman