Court File and Parties
Ontario Court of Justice
Date: August 27, 2020
Court File No.: FO-19-066
Between:
Danielle Dawn McLean Applicant
— And —
Martin Thomas Spencer Shannon Respondent
Before: Justice B. C. Oldham
Reasons for Judgment on Costs Submissions released on August 27, 2020
Counsel:
- Mr. Thomson — counsel for the applicant
- Mr. Hoos — counsel for the respondent
OLDHAM J.:
Background
[1] This is a cost decision following my Temporary Order of November 1, 2019 in respect of the Applicant's motion seeking the return of the child, Harleigh Shannon, born on […], 2007 ("Harleigh") to her home. The motion also sought orders for temporary custody, child support, alternate weekend access to the Respondent Father and the enrollment of Harleigh in […] Public School (collectively, the "Motion").
[2] The Respondent, Father opposed the motion and was the successful party. The Respondent has filed a Bill of Costs in the amount of $4,081.56 inclusive of fees, disbursements and HST.
[3] The Applicant, Mother filed a Bill of Costs in the amount of $3,658.38 inclusive of fees, disbursements and HST.
[4] There were no formal written Offers to Settle.
Position of the Parties
[5] The Mother submits that there was divided success and that given the Father's unreasonable behaviour, there should be no costs ordered. In the alternative, the Mother submits that the Father is not entitled to full recovery of his costs, but at most a partial indemnity and has suggested that $1,800 plus HST of $234 would be more appropriate.
[6] The Mother submits that the Father acted unreasonably by engaging the police and Children's Aid Society ("CAS") before speaking with the Mother about the issues. Proper communication, she submits may have avoided the need for this Motion.
[7] Further, the Mother submits that the Father requested that her access be supervised which was not granted. On that basis, there was divided success.
[8] The Father takes the position that he was the successful party and that the presumption under Rule 24(1) applies. While access was not ordered to be supervised, he submits that it was significantly reduced from what was being sought by the Mother.
[9] The Father denies that he acted unreasonably and maintains that under the circumstances he had no choice, but to take the action he did in response to his daughter's concerns.
[10] The Father has not provided any basis upon which he is claiming full recovery of his costs, other than the suggestion that the incident which led to his decision to involve the police and CAS was a result of serious misconduct (i.e., physical discipline) by the Mother.
[11] It appears from the submissions of both counsel that there were no discussions or even informal offers to resolve leading up to the Motion.
[12] The Application was commenced on August 30, 2019 with an ex parte motion. The ex parte motion was dismissed by Justice Lainevool on September 4, 2019. A case conference was held on October 1, 2019. An Amended Application was filed on October 3, 2019. The Motion was commenced October 22, 2019 and on October 29, 2019, it was confirmed for hearing on November 1, 2019. The Motion proceeded on November 1, 2019.
The Legal Framework
[13] Cost awards are exercises of judicial discretion found under section 131 of the Courts of Justice Act. That discretion must be exercised within the framework established by Rule 24 of the Family Law Rules ("FLR").
[14] Rule 24(1) is the presumptive rule. The presumption is that the successful party will be entitled to their costs.
[15] Rules 24(4) and (5) address the conduct of the parties. Specifically, the Rules state:
24(4) SUCCESSFUL PARTY WHO 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.
24(5) DECISIONS ON REASONABLNESS – 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.
[16] Rule 24(12), states:
(12) FACTORS IN COSTS – 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
(vii) any other relevant matter.
(12.1) SUPPORTING MATERIALS - Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court.
[17] The Court of Appeal in Serra v. Serra, 2009 ONCA 395, confirmed that family law cost rules are designed to foster three important principles:
- to partially indemnify successful litigants;
- to encourage settlement; and
- to discourage and sanction inappropriate behavior by litigants.
[18] More recently, the Court of Appeal has confirmed an additional principle which is to ensure that cases are dealt with justly under subrule 2(2) of the FLR. (See: Mattina v. Mattina, 2018 ONCA 867 at para 10).
[19] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. (see: Beaver v. Hill, 2018 ONCA 840 paras 4 and 12). The Court of Appeal references proportionality in paragraph 19 as follows:
"Proportionality is a core principle that not only governs the conduct of proceedings generally, but is specifically applicable to fixing costs in family law matters, as I have set out above."
[20] The Court of Appeal in Boucher v. Public Accountants, confirmed that "while it is appropriate to do the costs grid calculation, it is also necessary to step back and consider the result produced and question whether, in all of the circumstances, the result is fair and reasonable."
Issue and Analysis
[21] The Father was clearly the successful party in this motion and is presumptively entitled to costs. The central issues were the child's primary residence and which school should she attend. The Father was successful on both of these issues.
[22] The Mother submits that the presumption is rebutted as a result of the Father's behaviour. In particular, by not communicating his concerns about their daughter before engaging the police and CAS. She claims that had he discussed matters with her, they, together, might well have been able to resolve the issues as responsible parents who were dealing with a pre-teenage daughter.
[23] It is noteworthy that notwithstanding that position, it does not appear that there were any discussions between the parties even after counsel was retained to see if issues could be resolved as between 'responsible parents who were dealing with a pre-teenage daughter'.
[24] The presence or absence of an offer to settle can be properly taken into consideration in fixing costs; however, there is no obligation on either party to make an offer to settle. As noted by the Court of Appeal in Beaver, at para 15:
"Further, 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. The case here was not a situation where the issues could have been settled in any practical way."
[25] By extension, this comment may also be applicable to the lack of communication alleged in this case. It seems unlikely in these circumstances that the parties would have been able to resolve matters even if the Father had discussed the issues with the Mother before contacting the police or CAS. They were, and remained, at odds in terms of the specifics of the incident between the Mother and Harleigh and were and remained at odds, in terms of the appropriate resolution flowing from that incident, at the time of hearing the Motion. I do not see the Father's behaviour in this regard as being inappropriate such that it would rebut the presumption of his entitlement to costs under Rule 24(1).
[26] A review of cases which deal with the issue of reasonable behaviour suggests that the focus is on whether the conduct was such that it unreasonably or unnecessarily increased costs for the parties or demonstrated unreasonable or vexatious behaviour. For example:
Costs were increased when financial disclosure was provided very late in the proceedings. Justice Sherr found that this meant extra work for the mother as her counsel had to prepare for different scenarios. It also made it difficult for her to make an offer to settle. (See: Chakravarty v. Tharani, 2019 ONCJ 520).
Costs for the successful party were reduced because the party did not comply with court's direction regarding length of submissions on motions. (See: Campbell v. Campbell, [2020] O.J. No. 1582 (SCJ)).
Where a litigant persists in a weak case and forces the other side to prepare and respond to it, then costs ought to reflect the work done by the other side to respond. (See: Kirshenblatt v. Kirshenblatt (2008) 59 R.F.L. (6th) 120 (SCJ)).
Conduct in the proceedings themselves may have an impact. The successful party disentitled himself to costs when he stormed out of court and posted abusive messages about the judge on social media. (See: J.M. v. C.T.H., 2017 ONCJ 863).
Costs for the successful party may be reduced due to abusive emails that the mother sent which resulted in an escalation of the litigation. (See: T.S. v. P.L., 2019 ONCJ 288).
[27] I am not satisfied that the Father's behaviour in this case was unreasonable or of a vexatious nature such that Rule 24(4) or (5) would impact his presumptive entitlement to costs.
[28] With respect to the reasonableness of the Bill of Costs, I note, as counsel for the Mother submitted, that the Bills of Costs submitted by both counsel are comparable; the total amounts being within $500 of each other. A review of the Father's Bill of Costs reveals that it is reasonable in respect of the time and rates charged.
[29] Counsel for the Mother has suggested that travel time of approximately $600 should be excluded from the total Bill of Costs. While this is an additional cost, it is not unreasonable.
[30] As I noted in my oral reasons, these interim decisions often set the tone and direction of what is to follow. This was an important motion for both parties. It changed a significant status quo in respect of where Harleigh would live and go to school. The time and resulting costs of these proceedings are proportionate to the issues that were before the court.
[31] As noted above, there is no evidence to support a request for full recovery. Beyond the reference to full recovery costs in certain circumstances, the Rules are silent in respect of the amount of costs to be awarded.
[8] Yet, that is not how the costs in this case were determined. Rather, the resulting award approached a full recovery amount. In defence of that result, the respondent relies on what is contended to be the principle from Biant v. Sagoo, 2018 ONCA 840 [2001] O.J. No. 3693, 20 R.F.L. (5th) 284 (S.C.J.) that costs in family proceedings should "generally approach full recovery". I would make a couple of points in response to that contention.
[9] First, while the judge in Biant does make that statement, it is based on two decisions of other Superior Court judges, a close reading of which do not support the thrust of that statement. What those other cases do establish is that under the Family Law Rules, O. Reg. 114/99, judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules. Also, 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.
[10] Second, the respondent's assertion that this court's decision in Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 supports the "full recovery" approach to costs in family matters also reflects a failure to read the decision closely. What this court endorsed in that case was the principle that "a successful party in a family law case is presumptively entitled to costs" (at para. 94) subject, though, to the factors set out in Rule 24. This caveat is an important one since, as this court pointed out in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, the Family Law Rules "embody a philosophy peculiar to a lawsuit that involves a family" (at para. 11).
[33] Given the peculiarity of the issues in the Motion, this is not a case where costs should approach full recovery. The issues in this case are in some respects similar to mobility cases which courts have determined are challenging for everyone involved. As noted by Justice Sherr in Kawamata v. Phan, 2015 ONCJ 96, at para 12:
"By their very nature, an approved move will usually compromise a parent's relationship with his or her child. For this reason, such cases are difficult to resolve and often need to be decided by the court. It is understandable for parents to contest such requests. (See: Bridgeman v. Balfour.)"
[34] In Bridgeman, Justice M.D. Parayeski, declined to order costs on the basis that the applicant put the other party in the position of having little option, but to contest the case. While the Mother urges a no cost order in this case, the facts before this court are distinguishable on the basis that it is not a mobility case. The primary caregiver has not moved. This is a case, where the Father claims that it is the actions of the Mother, that led the child to seek a change in her primary residence and the resulting relocation of residence and school.
[35] Taking a step back and considering all of the factors set out in Rule 24(12), I find that a cost order of 60% of the total costs is fair and reasonable in these circumstances. It reflects success of the Father, the importance of the issues litigated and the need for the Mother to bring the Motion in these circumstances.
Order
The Applicant will pay the Respondent costs in the amount of $2,167 plus HST in the amount of $281. Costs are to be paid within 90 days.
Released: August 27, 2020
Justice B. C. Oldham