Court File and Parties
Ontario Court of Justice
Date: November 9, 2020
Court File No.: Toronto DFO – 15741/17 – B2
Between:
B.C.J.B. Applicant Father
— And —
E-R.R.R. Respondent Mother
Before: Justice Alex Finlayson
Submissions Respecting Costs: Made in Writing
Reasons for Decision: November 9, 2020
Counsel:
- Zahra Taseer – counsel for the applicant father
- Mira Pilch – counsel for the respondent mother
Decision
ALEX FINLAYSON J.:
A. Nature of this Costs Decision
[1] On August 28, 2020, I heard the father's motion for an order that he be given decision-making authority over whether to vaccinate the parties' child, B.R.M.R., for an order that B.R.M.R. cease attending his day care, for an order that the child change from a private school to a public school, and for a week-on, week-off parenting schedule. In this decision about costs, I shall refer to the health decision-making issue as the "vaccine issue".
[2] At the outset of argument of the motion, the parties informed the Court that they had settled the school issue. They agreed that the child would remain in his current private school this year, provided the mother would pay for the private school fees. I made a consent Order about this, and about certain other non-controversial matters. The parties did not settle the balance of the issues, however.
[3] I asked the parties at the outset of argument to consider whether they wished to proceed with argument of the motion at all, if they could instead proceed to a trial on the December 2020 sittings. After a break to consider this, the father abandoned his request to change the parenting schedule pending that trial, but the parties advised me that they wished to argue the vaccine and day care issues.
[4] I released my decision on September 28, 2020. I made an order that the father would have authority over B.R.M.R.'s health insofar as it concerned whether to administer Ontario's existing publicly funded vaccines to him. I dismissed the father's motion to change the status quo regarding day care, prior to trial. I directed the parties to return before me on October 20, 2020 for a Trial Management Conference, to prepare for the December 2020 trial sittings. I further indicated that the parties would proceed to Assignment Court before Justice O'Connell, also on October 20, 2020, after the completing the TMC before me.
[5] At paragraph 262(i) of my decision of September 28, 2020, I indicated that at first blush, it appeared that there had been divided victory on the motion. Nevertheless, I indicated that I would entertain submissions on costs, for example if counsel had a different view, or if there were relevant Offers. I indicated that counsel could advise me at the TMC on October 20, 2020 how they wished to proceed respecting costs.
[6] The Court did not complete the Trial Management Conference with the parties on October 20, 2020. The mother has appealed this Court's Order of September 28, 2020 to the Superior Court of Justice. As such, she asked that the parties not proceed to Assignment Court for the December 2020 sittings, because of her appeal. As well, I was told that the Office of the Children's Lawyer had still not contacted the parties about the Voice of the Child Report that the Court ordered on September 28, 2020.
[7] This mother's request for an adjournment was opposed. Nevertheless, I adjourned the TMC to a date in December, and I struck the matter from the Assignment Court list. I endorsed that the parties could instead work towards the January 2021 Assignment Court, for trial dates in March 2021. However, the parties did advise the Court that they wished to make submissions about costs. They agreed to make those submissions in writing. I set out a timetable for that to occur. I have now considered their written submissions.
[8] The father claims costs of the motion in the amount of $7,500.00 or $8,100[1]. Although he concedes that there was divided victory on the motion, he submits that the vaccine issue was the most time consuming and complex issue before the Court, and so it would be appropriate for the Court to award some costs nonetheless. The aforementioned amounts claimed appear to be about 50% of the total Bill of Costs.
[9] The mother says that there has been divided victory, and that there should be no costs at all. She also points out that the father failed to deliver an Offer to Settle.
[10] For the reasons that follow, I find that the mother should pay some costs of the motion to the father, but discounted to $3,000.00, inclusive of HST and disbursements. In my view, this is a reasonable and proportional amount that takes into account the various factors that the Court must consider.
B. General Legal Principles Concerning Costs
[11] Section 131 of the Courts of Justice Act provides that cost orders are in the discretion of the Court. The framework for awarding costs is set out in Rule 24 of the Family Law Rules.
[12] Pursuant to rule 24(10), the Court must deal with the costs of a step in a case, promptly after dealing with that step. The Court must either determine entitlement to costs and fix the amount, or expressly reserve costs to a later stage of the case.
[13] Modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) of the Family Law Rules adds a fourth, to ensure that cases are dealt with justly. See Mattina v. Mattina, 2018 ONCA 867 ¶ 10.
C. Analysis Respecting Entitlement
[14] An important factor in the determination of costs is success. Rule 24(1) provides a presumption that the successful party is entitled to costs of a motion. However, the Court may apportion costs if success is divided pursuant to rule 24(6).
[15] Both sides have made submissions about the operation of rule 24(6), and how it should impact the Court's assessment of costs of this particular motion.
[16] Rule 24(6) requires a comparative analysis. Not all issues will be equally important, time-consuming or expensive to determine. 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 Jackson v. Mayerle, 2016 ONSC 1556.
[17] There is merit to the father's argument that the vaccine issue was more complex, and of greater importance to the parties. For example, in support of the vaccine issue, the parties filed affidavit material, authorities, they each made submissions about the applicable legal test that ought to apply to the Court's decision, and they each made submissions about different matters that the Court should or should not judicially notice. Each side also placed medical evidence concerning B.R.M.R. before the Court, in relation to the vaccine issue. There is no question that the vaccine issue consumed the majority of the time and effort that the parties spent in their preparation and in argument.
[18] Therefore, I agree with the father's submissions in that I find that the father enjoyed more success than the mother, even though the Court granted only one of the four heads of relief set out in his Notice of Motion. I am prepared to find that he is entitled to some costs of this motion.
D. Analysis Respecting the Father's (Successful Party's) Behaviour
[19] Pursuant to rule 24(4), a successful party who has behaved unreasonably may be deprived of all or part of his or her costs, or even be ordered to pay the other side's costs.
[20] Rule 24(5) sets out the factors the Court is to examine in deciding whether a party behaved reasonably or unreasonably. These are the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle, the reasonableness of any offer the party made, and any offer the party withdrew or failed to accept.
[21] There is no basis for the Court to conclude that the father behaved unreasonably. In regards to rule 24(5)(a), while I did not grant every one of his requests, I am satisfied in general that his motion was motivated by a concern about B.R.M.R.'s best interests. It was also ultimately reasonable of him to settle two of the three other issues with the mother, in the fashion that he did. And although I did not rule in his favour on each of the matters raised on his motion, it remains to be seen what will transpire at a trial.
[22] Regarding rule 24(5)(b), it is true that the father did not make an Offer to Settle. Although the presence or absence of offers to settle can properly be taken into account in fixing costs, as the Court of Appeal said at ¶ 15 of Beaver v. Hill, 2018 ONCA 840, "…before the absence of an offer to settle can properly be used against a party, the situation has to be one where it is realistic to expect offers to settle to be made".
[23] It is hard to see how the vaccine issue, in particular, could have been settled. The parties' positions regarding this are polarized, and there is no middle ground that might make a settlement possible. While it is true that the father could have made an offer about the other issues he raised in his Notice of Motion, he ultimately did settle two of those three issues with the mother without the need for argument. His costs claim will be discounted for his lack of success regarding them, as it is. Therefore, I do not see a basis to further reduce the father's costs claim based on his failure to have made an offer.
[24] In regards to rule 24(5)(c), the mother has provided me with her Offer to Settle dated August 25, 2020. Ostensibly, this was an Offer to Settle the motion. However, it was a non-severable Offer, it included a particular term that would have required the father to settle on a final basis, and regarding the vaccination issue, it purports to defer the issue for a further two years. If accepted, that latter term would create the risk of what transpired in Chmiliar v. Chmiliar, 2001 ABQB 525, occurring in this case: see this Court's decision of September 28, 2020 at ¶ 184 and 242 for a further explanation on this point.
[25] So not only do the cost consequences of Rule 18 have no application in relation to the mother's Offer, but from the point of view of whether the father was reasonable or unreasonable in failing to accept it, I find this Offer was not really capable of acceptance by the father in any palatable way, under the circumstances. Therefore, I do not find the father's failure to accept this Offer to be unreasonable behaviour on his part, within the meaning of rule 24(5)(c).
E. Analysis Respecting Quantum
[26] The quantum of costs is determined with reference to the factors in rule 24(12). It reads:
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.
[27] I have already addressed the reasonableness of the father's behaviour. Regarding the mother, pursuant to rule 24(12)(a)(i), I do find that her behaviour in relation to the vaccine issue was unreasonable. Her decision making has been placed before the Court. The approach to her decision-making has resulted in the child not having received any vaccines for many years. Once the issue was brought to the Court, it ought to have settled in case management. Her persistence in refusing to allow B.R.M.R. to be vaccinated is contrary to science, to the medical advice she received, to the overwhelming weight of the case law, and to B.R.M.R.'s best interests. As a result of the position she took, the issue had to be litigated.
[28] In regards to the other factors in rule 24(12), I take no issue with the hourly rate charged, the disbursements incurred, or the amount of time the father's counsel spent on this matter. In fact, both counsel's Bills of Costs reflect that each side spent roughly the same amount of time. This is a yardstick of reasonableness.
[29] However, the father's total Bill of Costs amounts to $16,208.95. At ¶ 2 of his written costs submissions, the father says he is claiming "a percentage of his costs on a partial indemnity basis in the sum of $7,500". At ¶ 21 of the written costs submissions and in the Bill of Costs itself, the father seeks $8,100.00, which he says represents 50% of the costs incurred. The submissions suggest this discount is to account for the divided success.
[30] However, the father is not entitled to full recovery costs of this motion as the starting point. None of the rules which might warrant full recovery are engaged. In my view, it would be more appropriate to award costs in a reduced amount to begin with, and also to take the divided victory into account.
[31] The father's approach to the quantification of costs does only one of those things, but not both.
F. Ability to Pay
[32] In his written submissions, the father has made arguments about the mother's ability to pay, likely to respond to an anticipated inability to pay argument from her in her responding costs submissions. The mother has not made such arguments. Therefore, I need not address this further.
G. Summary and Order
[33] In summary, costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality: see Beaver v. Hill, 2018 ONCA 840. There was divided victory on this motion, but not equally divided victory. Having regard to these, and to all of the above factors which I have already articulated, I find the amount of $3,000.00 to be a reasonable and proportional amount of costs.
[34] Therefore, I order that the mother shall pay costs of the motion to the father in the amount of $3,000.00, inclusive of HST and disbursements, forthwith.
Released: November 9, 2020
Signed: Justice Alex Finlayson
[1] There are two different figures in the father's written costs submissions. I believe this is a clerical error. Regardless, I would not order either amount.