Court File and Parties

Date: April 15, 2021 Court File Number: 40/2020 Ontario Court of Justice at Orangeville

Between: Sloane Michele Phillips, Applicant

And: Talar Carla Drover and Christopher Jeffries, Respondents

Justice: B.E. Pugsley

Endorsement Re: Costs

Motion heard: March 17, 2021 Costs Endorsement made: April 15, 2021

[1] A half hour contested interim motion was heard on March 17, 2021. My endorsement dated March 22, 2021, reserved costs. The parties made written submissions as to costs as provided in my endorsement.

[2] Between my endorsement and the costs submissions the Applicant (maternal grandmother) served and filed a Notice of Intent to represent herself. She prepared her costs submissions here.

[3] The endorsement provided that the Respondent (father) (self represented) would neither pay nor receive costs.

[4] The Respondent (mother) submits that she is entitled to full recovery of costs pursuant to Rule 18 (14) of the Family Law Rules (“the Rules”) because she served an Offer to Settle which was not accepted. She notes that she was entirely successful in the motion and that the Offer proposed a settlement that was better than the Applicant received on the motion.

[5] The Respondent (mother) retained very experienced family law counsel at Nathens, Siegel LLP who prepared voluminous material and her costs were accordingly very substantial.

[6] The Respondent seeks $26,000.00.

[7] The Applicant (grandmother) submits that she ought to pay no costs at all. She has no money, the Respondent (mother) can draw on the allegedly very large monetary resources of her current partner, and in any event the supporting affidavits used at the motion by the Respondent (mother) were from relatives who dislike her and are beholden to or fear the Respondent (mother)’s said partner. The Applicant states that she is close to bankruptcy and will soon have no resources to live. She only acts out of love for her grandchildren.

[8] The Rules provide a nearly complete costs code for the family law proceedings to which it applies, including in this case. Rule 24 (1) presumptively gives the successful party her or his costs, subject to the guidance set out in Rule 24 (12) including 24 (12) (b) any other relevant matter. The Rules do not completely oust a hearing judge’s discretion on costs as provided in section 131 of the Courts of Justice Act, RSO 1990, c C-43 (see for example ACM v. DM (), 67 OR 3rd 181)(2003)(OCA)) and implicit in Rule 24 (12) is the requirement that such a judge consider the “reasonableness and proportionality” of a parties’ actions and behaviour and “any other relevant matter” – factors that engage judicial discretion in their consideration (see for example Beaver v. Hill, 2018 ONCA 840 (OCA)).

[9] Rule 18 (14) expressly deals with the costs consequences of failing to accept an Offer to Settle that provided for a result the same or better than that achieved by the recipient at the hearing. As noted above this is relied upon by the Respondent (mother) in this case to seek in costs essentially every dollar she has spent responding to the Applicant’s motion, in this case top dollar paid for top counsel.

[10] Costs consequences are a vital tool used by the Rules to require parties to think long and hard before engaging in or continuing litigation. Such consequences require that parties engage in a cost/benefit analysis at each step of an action and encourage compromise and ultimately settlement. This is one reason why the Rules require that costs be considered at each step in a proceeding. This provides a continuing reminder to litigants of the importance of compromise.

[11] Costs should not, however, be used as a cudgel to stop litigants from bringing relevant issues concerning the best interests of children before the court.

[12] Plainly put, litigation chill (overt or unintended) has absolutely no place in family law. Family law is not just another form of civil litigation akin to motor vehicle accident law or actions under the Construction Lien Act.

[13] In the family courts of the land we deal with issues profoundly engaging the future of children, parents, siblings, grandparents and everything else that that encompasses. While costs must follow success and while offers must be both encouraged by the court and considered very carefully by a recipient, if a decision concerning a child’s future is placed in jeopardy largely due to an imbalance in litigation resources the best interests of the child may never be considered.

[14] I agree that the Respondent (mother) must have her costs here. She was completely successful. Those costs must reflect the complexity of the matter and the reasonable efforts and treasure spent by the Respondent (mother) in bringing her evidence before the court, evidence that was devastating to the Applicant’s motion. The costs should also reflect the fact that the matter was a temporary, not final, motion and that it was argued fully in 30 minutes. Further, considerable expense was saved by the fact that the parties and counsel could all appear virtually rather than making the long weary trek to Orangeville.

[15] I do not however agree that the Offer to Settle is of much moment here. The issue before me was grandparent contact. The Offer was for one email per month, censored by the Respondent (mother) and given to the children if she felt it was appropriate. This offer is so stingy as to be effectively meaningless under Rule 18. The Applicant could not thoughtfully contemplate accepting such an offer in this case as settlement of her motion. I do not give effect to Rule 18 here.

[16] My endorsement noted that a relationship in some form between grandmother and grandchildren here is not beyond the realm of possibility in the future. The crushing costs sought here are not proportionate to the issue and time engaged and would serve to perhaps prevent the court from even considering the children’s best interests. I must consider the resources of the now unrepresented Applicant.

[17] On the other hand the Applicant ought to have considered that the Respondent (mother) might indeed hire experienced counsel knowing as she says she does about the Respondent having access to monetary help.

[18] If you start a fire you may end up being burned. If a responding party engages experienced and expensive legal advice you may be badly burned indeed. That is the risk of starting a court action.

[19] Substantial costs are required, but, I find, not those costs claimed here. In my view costs fixed at $10,000.00 are fair in all the circumstances and represent a meaningful and clear indication to the Applicant of the cost of litigation without being crushing. I will consider the unanswered statements of the Applicant in her submissions as to her current cash flow concerns when I determine the time frame for payment of those costs.

[20] I make the following order for the costs of the motion heard on March 17, 2021, inclusive of the cost of preparing the costs submissions themselves:

1. The Applicant shall pay to the Respondent (mother) her costs of the Motion heard on March 17, 2021 fixed at $10,000.00 inclusive of HST and disbursements and payable within six months of this endorsement.

Justice B.E. Pugsley