Court File and Parties

Ontario Court of Justice

Date: October 1, 2020

File No.: D19-224

Between:

A.L.M. Applicant

— AND —

V.L.S. Respondent

In Chambers

Decision on Costs released on October 1, 2020

Counsel

Michelle Dwyer — counsel for the applicant

Jonathan Krashinsky — counsel for the respondent

Judge

CASPERS, J.:

1. OVERVIEW

[1] This is a costs decision arising from two custody and access motions heard on August 11, 2020. In a written decision released on August 14, 2020 (Decision) with respect to the substantive issues, the court provided the parties with the opportunity to make written costs submissions in the event that an agreement could not be reached on that issue. Both parties have availed themselves of that opportunity. I have carefully reviewed the costs submissions filed by both parties.

[2] The applicant (father) seeks recovery costs on a partial indemnity basis of $3,957.59 inclusive of disbursements and HST on the basis that he was mostly successful. The respondent (mother) takes the position that success was divided and therefore asks that no costs be paid. I have considered these submissions and would award the father his costs fixed at $3,000.00.

2. LITIGATION HISTORY

[3] A brief history of this proceeding was outlined in my earlier Decision. I do not propose to restate those facts here.

3. ANALYSIS

General Legal Principles

[4] 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. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases.

[5] The Court of Appeal has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: [See: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40; Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.).]

[6] Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly. [See: Family Law Rules, R. 2(2); E.H. v. O.K., 2018 ONCJ 578; Sambasivam v. Pulendrarajah, 2012 ONCJ 711].

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

[8] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal: [See: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730]. The presumption that a successful party is entitled to costs applies equally to custody and access cases. [See: Britt v. Britt, [2000] O.J. No. 5981 (S.C.)].

[9] While consideration of success is the starting point in determining costs, this presumption does not, however, require that the successful party shall always be entitled to costs. [See: M.(C.A.) v. M.(D.), [2003] O.J. No. 3707]. An award of costs is subject to the following: 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. [See: Berta v. Berta, supra]

[10] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

(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.

[11] The Family Law Rules only expressly contemplates full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has exceeded an offer to settle under Rule 18(14).

[12] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:

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.

[13] Rule 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.

[14] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:

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.

[15] Divided success does not equate to equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. [See: Jackson v. Mayerle, 2016 ONSC 1556]

[16] The determination of whether success was truly "divided" does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them [See: Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)]. Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication [See: Jackson v. Mayerle, supra; Slongo v. Slongo, 2017 ONCA 687 (C.A.)]

[17] Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case [See: Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.); Arthur v. Arthur, 2019 ONSC 938].

4. THE PARTIES' POSITIONS

The Father

[18] The father's position is that he should be entitled to his costs on a partial indemnity basis in the amount of $3,957.59.

[19] In support, the father argues that the motions concerned matters of the utmost importance. The father contends that he acted reasonably whereas the mother acted in a "high-handed" manner when she abruptly and unilaterally removed K. from the parties' home in November 2019 thereby removing from his school, day care and community. He argues that the mother initially refused his requests for access and prevented the father from speaking with K. on the telephone for a period of one week after leaving the family's residence. Furthermore, he asks the court to consider that the mother interfered with the father's ability to obtain information about K. from third parties and particularly by threatening to have the police called if he attended at K.'s school.

[20] The father submits that his lawyer charged reasonable rates and worked in a cost-effective manner.

The Mother

[21] The mother, relying on R. 24 of the Family Law Rules, submits that there should be no order as to costs as success was divided. While the father was successful with respect to the issue of parenting time, mother was successful with respect to the schooling issue.

[24] The mother contends that the father misled the court on consistently maintaining that the mother unilaterally left Moorefield for Elmira without advising him of her intention to do so. The court agreed.

5. APPLICATION OF THE PRINCIPLES

Importance and Complexity

[22] The case was important for the parties. It was not overly complex or difficult.

Legal Fees

[23] The rates claimed by counsel for the father and the time spent at each step of the proceeding are reasonable. I am not aware of the accumulated cost for legal fees incurred by mother.

[24] This proceeding began in December 2019 with the filing of the application on December 10, 2019. A case conference was set for and heard on March 10, 2020 and a further date to monitor the OCL request for engagement was scheduled for May 12, 2020. Due to the intervention of the COVID-19 pandemic, the proceeding was adjourned to June 1, 2020 for a remote hearing. At that stage the date was set for a hearing of the motions on August 11, 2020 to address issues of residency, parenting and schooling with filing deadlines imposed. The motions were heard on August 11, 2020, remotely, with counsel and parties in attendance. My Decision on those motions was released on August 14, 2020. Timelines were set for the filing of costs submissions if the parties could not reach an agreement on the issue. Regrettably they could not, and the issue of costs is what I must now address. Only father's counsel has filed a Bill of Costs referencing total costs and disbursements in the amount of $6,025.16. Father's claim in his submissions on this issue is for recovery of $3,957.59 on a substantial indemnity basis.

[25] I have reviewed the Bill of Costs spanning the period from June 8, 2020 to August 26, 2020 and find it fair and reasonable. During that period there were no requests for costs which were previously addressed, reserved or for which a claim is now being made where costs should have been addressed but were not.

[26] 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 …. 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.

Offers to Settle

[27] An Offer to Settle was sent by father on July 29, 2020 which reflected the Order made on August 14, 2020 with respect to parenting time. The issue on which father was not successful was the issue of schooling. No Offer to Settle was filed by mother in her costs submissions.

Divided Success

[28] There was divided success. However, there is a caveat to that determination which requires a contextual analysis.

[29] The issue of parenting time between father and K. was of importance to both parents but more important, I would suggest, to father. He argued at the hearing of the motions that he had been an active parent in the life of his son. Mother disputed this. Father sought an equal sharing of time with K. Mother sought to restrict his access to alternate weekends and some after school time on Tuesdays and Thursdays in accordance with an Order made by Snowie, J. in the Superior Court of Justice when K. was 6 months of age.

[30] The evidence before me supported the father's position that he and mother shared the caregiving responsibilities prior to November 20, 2019 and that there was no consent parenting arrangement in place after that date. Ultimately, I found that mother's relocation from Moorefield to Elmira did not create a new status quo and that the true status quo was the co-parenting arrangement that existed prior to November 20, 2019. The preponderance of time was spent addressing the issue of parenting. The Order made reflected this arrangement.

Unreasonable Behaviour

[31] While mother was successful in her request to have K. attend R. Public School in Elmira, her conduct before and after his registration was not child-focused.

[32] Mother, according to her own evidence, agreed with father that if she were to move to Elmira, K. would remain in his current school which, in November 2020, was M. Public School where he had been in attendance from the start of his schooling until the middle of his grade three academic year. She did not comply with her undertaking. Instead she removed him from his school, teachers and friends and enrolled him in a school more proximate to her residence with which he was then unfamiliar.

[33] Following K.'s enrollment in school, according to father's evidence, mother instructed the principal of R. Public School not to provide to father any information about K.'s progress. This is not refuted by mother in her materials. Furthermore, father advised the court that were he to attend at the school, on mother's instructions to the school staff, police were to be contacted. This was unreasonable and unnecessary conduct especially given that the parties, until November 2019, had been co-parenting and residing together in the same house. While there was clearly strife between the parents, I accept that both parents were and continue to be devoted to their son. While I do not find that this conduct on the part of mother reached the threshold of bad faith, I do find that it was certainly unreasonable.

[34] By the time the motions were heard, K. was registered in R. Public School, Elmira. By then he had experienced a great deal of upheaval in his young life. To have ordered a return to Moorefield would have created further stress for the child which was unwarranted given the relative proximity of father's residence to Elmira which enables him to have regular and meaningful ongoing engagement with his son through a court-ordered shared parenting arrangement.

[35] It is appropriate to award costs to the father, given his greater success on the major issue of parenting time, and to make an appropriate adjustment to account for the divided success on the less dominant issue of schooling. To call mother "successful" on the issue of schooling, given her actions, would sanction her conduct, which the court is not prepared to do, and would be contrary to public policy.

[36] Taking into account these considerations, an order shall go that the mother shall pay the father's costs fixed in the amount of $3,000.00 inclusive of fees, disbursements and HST. The costs are payable within 60 days.

Released: October 1, 2020

Signed: Justice Jane Caspers