ONTARIO COURT OF JUSTICE

CITATION: Vessel v. Denomme, 2022 ONCJ 247

DATE: 2022.04.16

HAILEYBURY COURT FILE No. F0-18-0000004

BETWEEN:

DANIKA VESSEL Applicant

— AND —

ANTHONY DENOMME Respondent

Before Justice John Kukurin

Heard on Written Submissions

Reasons for Judgment released on April 16, 2022

Mathieu Perron ............................................................................. counsel for the applicant(s)

Jacqueline Strybos .................................................................. counsel for the respondent(s)

Kukurin J.

[1] This is my decision on the claim for costs, after trial, on an application in which the mother was the applicant and the father was the respondent. The application revolved around their son, Findlay, who is now age 6 years. The application had a number of claims, but the two most prominent were under the Children’s Law Reform Act (the CLRA), and the Family law Act, (the FLA), more specifically under the Child Support Guidelines (CSG). This decision relates to the CLRA matter only. The FLA/CSG claims were dealt with in a separate order, although in the same proceeding, and the factors that impacted on costs in that proceeding are sufficiently different that I felt they should be dealt with separately.

[2] In my endorsement following the trial, I included the following direction

That if any party seeks costs of the CLRA claims herein, he or she shall

(a) serve on the other party and file a Form 14B Notice of Motion within 30 days of this endorsement seeking such costs;

(b) file an affidavit, not exceeding five pages double spaced, with exhibits not exceeding five pages

(c) file written arguments, not exceeding three pages double spaced

(d) provide any case authorities, citations only, with paragraphs relied upon.

failing which there shall be no costs to such party.

The party against whom costs are claimed shall be permitted 30 days from date of service to file any evidence in response, not exceeding five pages double spaced, together with case law, citations only, with paragraphs relied upon.

[3] The applicant mother brought a Form 14B motion seeking costs. She also submitted in support of such claim

➢ affidavit of Savanna Alexander sworn Feb 14, 2022, including

• ex 1 – disbursement bill of costs

• ex 2 – offer to settle of the mother dated March 16, 2021

➢ written submissions on costs by the mother

[4] The respondent father filed with the court

➢ affidavit of Leeann Gauthier

• including offer to settle of the father dated April 4, 2021

➢ written submission on costs by the father

[5] The mother seeks costs. The father responds to her claim, but does not ask for costs for himself.

[6] Despite the direction in the court’s order with respect to costs, the mother’s submission included costs of both the CLRA claims as well as the FLA/CSG claims. The father responded to her costs submissions with respect to both.

[7] Costs in family law matters are governed by the Courts of Justice Act and the Family Law Rules. Decisions on costs are also impacted by court cases which are copious and not always consistent. However, this jurisprudence sets out some basic guidelines and principles which it behooves this court to examine in the context of how they apply to the present costs claim.

The Context of the Claim for Costs

[8] This proceeding started in Jan 2018. It had numerus conferences and was finally set for trial on April 30, 2021. Because of COVID spikes about that time, the court directive from its chief judge resulted in that date being vacated. Thereafter the father lost and then re-acquired his counsel, and the trial was set for Nov 19, 2021 and took place on that date. Judicial Reasons were released Jan 3, 2022. A final order of claims under the CLRA was made Jan 28, 2022.

[9] The parties were initially self represented. However, they had counsel at trial, and through much of the almost four years of their litigation. The main issues under the CLRA on which they could not agree were decision making responsibility and parenting time.

[10] The Applicant mother initially sought primary custody, and at trial, sought sole decision making responsibility. The Respondent father initially sought joint shared custody, and at trial sought shared decision making responsibility. The court ultimately ordered after trial that the mother have sole decision making responsibility, but she was to give 30 days advance notice to the father of any proposed decision she intended to make. She clearly was the successful party on this claim.

[11] The parenting time issue was relatively simple in terms of the positions of the parties. The mother’s initial claim was for paternal access on alternate weekends (Fri to Mon) plus holiday times. By the time of trial, her claim was for alternate weekend access (Friday after school to Sunday at 6 pm) plus one suppertime visit in the in between weeks. The father initially sought equal parenting time (week about) and by time of trial, he was still seeking equal shared parenting time on a week about basis. That his claim was for equal shared parenting time, week about, is abundantly clear from

(a) the fact that he never amended his claim in his Answer;

(b) the responses to questions put to his counsel Feb 9, 2021;

(c) the opening statement by his counsel at trial;

[12] Ultimately, the claim for equal shared, or week about, paternal parenting time was not granted. The father received alternate weekend parenting time Friday to Sunday, to be extended to Thursday and to Monday if these were PD days at school. He was also granted one other overnight day per month, during the school year, Friday after school until Saturday at noon. This was slightly more than the mother was offering, but was not the equal sharing on a week about basis that the father was seeking.

[13] There were also holiday and special occasion days that, on the whole, were resolved more or less on the basis that both mother and father were advocating. Overall, on parenting time, the mother was successful and the father was not.

Costs in Family Law Matters

[14] Costs are governed by s.131 of the Courts of Justice Act

S. 131 (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. R.S.O. 1990, c. C.43, s. 131 (1).

[15] Costs are in the discretion of the court, and the court is authorized to determine by whom and to what extent costs are to be paid. In this case, the costs are of, and incidental to, a step in the proceeding. I will deal with the what that ‘step’ is below. More relevant, however, costs are “subject to the provisions of … the rules of court”. But before examining the Rules, one has to examine case law to determine what are the objectives of an award of costs. we have cases aplenty dealing with costs. The more relevant to the aims of a costs award are appellate decisions.

[16] The Ontario Court of Appeal in its recent decision of Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

• to partially indemnify successful litigants;

• to encourage settlement;

• to discourage and sanction inappropriate behaviour by litigants and;

• to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules

[17] With those objectives in mind, it is the court’s duty to be guided by the specific provision of the Rules. There is, in fact, a specific Rule in the Family Law Rules that deals with the matter of costs. It is Rule 24. The annotations[^1] following particular rules are the most voluminous following Rule 24 than for any other Rule, an indication of how often and what extensive case law has been generated by this Rule.

[18] Rule 24 encompass two main determinations

Firstly, should costs be awarded and, if so, to whom.

Secondly, If costs are awarded, what is the amount of such costs

[19] With respect to the first, the preliminary question that needs an answer is “For what step are costs claimed, and should the court award costs of that step?” In the present case, the global (all inclusive) amount of costs claimed is $12,250.88. It is incumbent on the court to examine how this quantum was composed.

Steps in the Proceeding

[20] It is not crystal clear for what steps in the overall proceeding the mother is seeking costs. What is unequivocal is that her “all-inclusive” quantum is $12,250.88. This is comprised, according to the supporting affidavit of Savanah Alexander, of fees and disbursements of $10,842.64 and HST of $1,498.24. The mother did provide a ‘disbursements’ Bill of Costs summary page from Jan 24, 2020 to Feb 14, 2022 totalling $219.14 plus HST thereon of $28.49 (for total disbursement costs of $247.63). Applying common sense, I conclude that of the all inclusive claim of $12,250.88, $247.63 is for disbursements and applicable HST. Therefore the amount for fees and HST on fees is ($12,250.88 - $247.63 =) $12,003.25 which I round of to $12,000.

The mother did not include a Bill of Costs itemizing what services and what steps this total of $12,250 covered. From the Alexander affidavit, it appears that the mother initially (on Dec 18, 2018) had legal aid. What was billed to Legal Aid is unstated and unknown. However, the mother thereafter (from Jan 2020) retained her lawyer privately. She has been interim billed privately by her lawyer, and has paid, a total, including fees and HST of $9,428.50. As of Feb 14, 2022, she also had unbilled fees of $585.00 plus HST (+ $75) thereon. If this unbilled amount is added, the total for fees and HST is approximately $10,088 of which $1,160 is HST leaving $8,927 for fees for the period from Jan 2020 to date.

[21] The above arithmetical exercise is needed because, in absence of a Bill of Costs, there is no way of knowing for what period the mother’s figure of $12,250.88 relates, nor for what legal services rendered to her. It seems logical to conclude that her ‘all-inclusive’ figure of $12,250.88 also includes her costs that predate Jan 2020.

[22] How does this tie in to Rule 24? Rule 24(10) was amended in 2018. It, and Rule 24(11), now read:

Rule 24 (10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.

(10.1) Revoked: O. Reg. 298/18, s. 14.

Rule 24(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court

from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.

[23] The “step in the case” subrule was problematic and had generated some dissatisfaction both in the bar and in the bench. The current jurisprudence provides some guidance although it is more persuasive than binding

[24] In Cameron v. Cameron, 2018 ONSC 6823, [2018] O.J. No. 6009[^2] (Kurz Ont SCJ), there is a fulsome examination of the impact of the current Rule 24(10) and Rule 24(11) on the matter of a trial judge dealing with costs of prior steps in a case. Kurz J. concludes:

83 In sum, a trial judge has the jurisdiction under R. 24(11) to determine the costs of earlier steps in the proceeding. However, in light of the continued application of R. 24(10), it should be presumed that a judge who does not determine or reserve the costs of a step before her or him does not find that the conduct of the parties during the course of that step merits an award of costs.

84 That presumed finding should be entitled to deference by subsequent judges.

86 In light of the presumption, a judge hearing a trial should only grant the costs of a previous step in one of the following circumstances:

a. when they have been reserved to the trial judge; or

b. when, in light of subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over that step. In that case, the process of determining costs will involve a broad consideration of the prior step within the context of the case as a whole; or

c. in exceptional circumstances.

87 If a party seeks the previously undetermined and unreserved costs of a previous step, the onus rests on him or her to set out why those costs should be awarded in their favour. To meet that onus, the party should offer a detailed summary of each prior step for which he or she is seeking costs. The party should add an explanation of why he or she should now be granted the costs of that step.

I agree with the comments of Justice Kurz in the Cameron case. In the present case, I became involved only in January 2021 by which time an April 30, 2021 trial date had already been set. According to the court record, all prior steps had taken place with Justice Maille presiding. Those were from January. 2018 to January 2021. I infer that the costs now claimed by the mother includes that 3 year time period as well as the period from Jan 2021 to date. I see no endorsement by Justice Maille reserving the costs of any step taken before him, nor determining any such costs. Moreover, I see nothing from the mother that meets the Kurz suggestion, namely

“ … a detailed summary of each prior step for which he or she is seeking costs. The party should add an explanation of why he or she should now be granted the costs of that step.

[25] I am not persuaded that I am better situated than the judge presiding at steps prior to my involvement to determine the costs of such steps. I also do not see this case as presenting exceptional circumstances warranting my ordering costs of a prior step.

[26] I repeat s.131 of the Courts of Justice Act which states explicitly that costs are in the discretion of the court. I decline to exercise my discretion to award costs to any step in this case prior to my involvement for the reasons stated above.

[27] The issue of the costs of “prior steps” deals with only part of the costs claimed by the mother. There are also other considerations that require explanation.

Indemnification Purposes of Costs Orders

[28] One of the purposes of an award of costs is to “partially indemnify successful litigants” [See Mattina cited above). It is not meant to achieve full indemnification for a successful litigant, except perhaps in cases of “bad faith” [Rule 24(8)] or where consequences of failing to accept an offer [Rule 18 (14)] apply.

[29] The mother submitted an offer to settle dated March 16, 2021. The father says that this offer was “rescinded” on April 23, 2021. There is no evidence before this court that this did take place. Offers to settle are not rescinded. The are ‘withdrawn’ and that withdrawal, under Rule 18(5) can only be by a notice of withdrawal served at any time before it is accepted. I have seen no Notice of Withdrawal and am not satisfied that it was withdrawn.

[30] Offers to Settle have an important role to play in family litigation. Rule 18 was designed to set formal requirements for offers. It also set out consequences for litigants when an offer is not accepted. In the present case, the copy of the offer provided to me by counsel for the mother was signed by the mother, was dated and was witnessed. The mother’s counsel’s signature is not on the offer. Rule 18(4) says

Rule 18 (4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. O. Reg. 114/99, r. 18 (4).

Technically, the mother’s offer is not an offer under Rule 18. It did not comply with the formal requirements. The result is that the consequences under Rule 18(14) do not apply. The father’s offer was similarly defective and it was also not witnessed.

[31] Notwithstanding this technical deficiency, the court can take into account any written offer in its determination of costs.[^3]

Rule 18 (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16.

[32] While I do not find that the mother’s offer meets the technical requirements under Rule 18 that engages the consequences in Rule 18(14), I do take it into account in my overall assessment of the costs issue.

[33] Keeping in mind that “full recovery of costs” by the mother is not warranted under Rule 18 [14], and that the jurisprudence, especially from the appellate courts, confirm that it is only “partial” indemnity that is the objective of the costs Rules, I have to discount the mother’s claimed quantum of costs on these grounds as well.

Bad Faith

[34] Bad faith by a party can lead to full recovery costs. Neither party is alleging bad faith on the part of the other. I do not find any conduct tantamount to bad faith.

Divided Success and Reasonableness

[35] With respect to the claims under the CLRA, my feeling, having regard to the initial claims of the mother, her claims at trial, and the court’s decision, is that she was only marginally less than totally successful. She sought an order that gave her sole decision making responsibility, and in that she was successful. She also sought an order that gave the father parenting time every second weekend Friday after school until Sunday at 6 pm, as well as at dinner time daytime on Wednesdays on the in between weeks. In fairness, she suggested the father have summer access in two two-week blocks, and one half of the Christmas break. The father was not successful in his claim for equal parenting time, especially on a week about schedule. However, he was given one overnight each month and extended weekends if a school PD day fell on his parenting time weekend.

[36] I cannot say that success was divided in this case on the CLRA claims. Overall, I can say that the mother was reasonable in her CLRA claims. I would not deprive her of costs on this account.

Amount of Costs

[37] In determining the amount of costs, Rule 24(12) lists the factors that the court should consider in determining the reasonableness and proportionality of these listed factors. They are in clauses (a) (i) to (vi). Additionally, there is a catch- all consideration in clause (b), namely “any other relevant matter”.

Rule 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. O. Reg. 298/18, s. 14.

[38] As mentioned, I cannot comment on what transpired in the 3 years from commencement to Jan 2021 as I was not involved. However, from the time of my assignment as trial judge, I do not consider either party to have been either unreasonable or disproportionate in their respective conduct. The first trail date was lost due to no fault of the parties but rather due to the pandemic and a court directive flowing from that. A further delay was occasioned by the father’s illness and his loss of counsel. However, that illness was apparently a bona fide one for which he sought medical assistance, and he re-retained his counsel relatively promptly, and did set another trial date. There were no expert fees. The mother’s disbursements seem to be reasonable (although when and for what they were incurred unknown) but no challenge or attack was made on this item. I have noted that written offers, both not formally compliant with Rule 18, were made. This shows reasonableness and proportionality as this case was long overdue for resolution. If any comment can be made, it is that offers should have been made much earlier than they were. In terms of lawyers rates and legal fees, none were mentioned and no Bill of Costs was provided (except as to disbursements).

[39] I have also to consider any other relevant matter. Of note is that it is not the reasonableness or proportionality of such other relevant matters as they relate to the complexity and importance of the issues that this court must consider. It is just any other relevant matter that impacts on the court’s determination of the amount of costs.

[40] There are four other matters that have some relevance to this costs decision.

(a) This is a decision only on the claims made under the CLRA. There were other claims made under the FLA/CSG related to child support which may, or may not, give rise to a separate claim for costs. The mother’s “all inclusive” figure of $12,000 includes the FLA/CSG litigation as well.

(b) There was a prior interim order in January 1017, made on consent, that gave the father weekend access Fri at 10 am to Sunday at 6 pm every week. This was not kept by either party, and the father’s access informally took the form of every second weekend with an evening in the off week. By date of trial he had the child every other weekend and Friday overnight to Saturday noon on the weekend in between. In short there was a sort of status quo with respect to parenting times before this proceeding even started.

(c) The father suffered some kind of medical episode in 2021 which was significant enough to result in admission to a medical facility for mental health assessment and treatment. That it was significant is borne out by the length of his hospital stay, by the fact that he was off work for several months, and that he qualified for long term disability and further absence from work. This should have been sufficient to make him re-assess his claim for equal parenting time and for shared decision making responsibility.

(d) I dismissed the father’s claim for a restraining order against the mother as well as an order that she be restrained from communication with herself (sic). In addition I did not grant child support based on a s.9 CSG basis. The father did not formally abandon any of these claims prior to trial despite participating in several conferences when he should have looked again at his claims and assessed his chances of being successful in them.

(e) The CLRA changed in March 2021 – significantly.

[41] Having regard to the Rule 24(12)(a) factors and the Rule 24(12)(b) factor, I come to the conclusions and order set out below

Summary and Conclusions

[42] The mother was relatively reasonable in her CLRA position, both in her claims, as well as in her response to the father’s claims. I also consider her offer to settle which was a further indication of her reasonable position on CLRA claims. The father may have had some justification for his week about parenting time claim initially as he had a valid order of weekly access. However, he did not follow this order. He acquiesced in a regime of alternate weekend access without the benefit of any further temporary order. He was not making, and had rarely, if ever, made, major decisions affecting the child. The mother was always the decision maker. The child’s primary residence was always with his mother. The child was doing fine. He and the mother were not close to co-operating in their parenting of Findlay. Counsel, in fact, described this as a high conflict case. In those circumstances, he should have been much more reserved in what he sought by way of court order. He ought to have looked closely at his claims and at his position on the mother’s claims. He did not do so despite four years of opportunity and the happening of many changes. An example is his failure to formally abandon his claim for a restraining order throughout these four years, and to re-assess his shared decision making responsibility claim in light of the history and the communication difficulties between the parents. In short, he contributed to the litigation which was unnecessary in all of the circumstances.

[43] As aptly put by Curtis J. in Lawrence v Lawrence,[^4]

51 One of the purposes of costs is to change behaviour.

52 The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all lift those who need it. This is one of the purposes of Rule 2.

53 Family law litigants are responsible for and accountable for the positions they take in the litigation.

54 Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation

[44] In short, the parties, as well as their lawyers, have an obligation to do their utmost to ensure that their litigation promotes the main objective of dealing with their case justly, and they will be held accountable if they do not. [See Rule 2 (2), (3), (4)]

[45] I have also noted that despite the four year duration of this case, the issues were not overly complex nor out of the ordinary. They were resolved by a trial that lasted only one day.

[46] Having regard to all of the foregoing, I award the mother her costs as follows

(a) for fees $4,500.00

(b) for disbursements 219.14

Total $4,719.14

These are costs that relate to the CLRA claims only. They relate only to the parts of the proceeding in which I was involved, and that includes this motion for costs. The costs take into account the father’s failure to re-assess his position since my involvement, and the dismissal of some of his claims. I do not make orders for HST or any other taxes. I leave any taxes applicable to this award of costs to whoever is responsible for collecting such taxes. In light of the father’s recent medical difficulties, my decision on child support that leaves him in substantial arrears, and that he has been off work for most of 2021, these costs are payable within 120 days hereof.

Released: April 16, 2022

Signed: “Justice John Kukurin”

[^1]: For example in Ontario Family Practice 2022, Coats, Steinberg, Perkins, Lenkinski, James, Editors (Lexis Nexis Canada Inc)

[^2]: Cameron v. Cameron, [2018] O.J. No. 6009, 2018 ONSC 6823 (Kurz, Ont SCJ). See also T.L. v. D.S., [2020] O.J. No. 96, 2020 ONCJ 9 (Sherr Ont CJ) and Berge v. Soerensen, [2020] O.J. No. 2398 (Zisman Ont CJ) both agreeing with the Cameron decision with respect to Rule 24(10) and (11).

[^3]: See Blackstock v. Comeau [2018] O.J. No. 871 (Desormeau Ont SCJ) at paragraphs 26 and 27; Browne v. Cerasa [2018] O.J. No. 1886 (Fryer Ont SCJ) at paragraph 14

[^4]: Lawrence v. Lawrence [2017] O.J. No. 3289, 2017 ONCJ 431, 2017 CarswellOnt 9843, 280 A.C.W.S. (3d) 785, 96 R.F.L. (7th) 456