Court File and Parties

Ontario Court of Justice Date: 2024-05-24 Court File No.: Woodstock D241/16

Between:

Cassandra Johnson Applicant

— AND —

Michael Benjamin Respondent

Before: Justice S. E. J. Paull In Chambers Reasons on Costs Released on May 24, 2024

Counsel: James G. Battin, for the applicant Scott DeGroot, for the respondent

Reasons on Costs

PAULL J.:

[1] Before the court is the issue of costs following the trial in this matter which preceded over 3 days in March 2024. Reasons for Judgement were released on April 15, 2024. In the Reasons the court invited written submissions on the issue of costs if the parties were not in agreement.

[2] The respondent seeks partial indemnity costs of $18,074.77 inclusive on the basis that he achieved greater success and that the applicant was unreasonable in her approach, particularly to the issue of parenting time.

[3] The applicant seeks an order for no costs on the basis of the divided success. She also submits that given her modest financial resources that any costs order would be an unreasonable burden and would significantly impact her ability to provide for the child during her parenting time.

[4] The parties are the parents of one child, Grayson born May 24, 2013. Mr. Benjamin brought a motion to change which sought, among other things, sole decision-making and primary residence, with parenting time to Ms. Johnson including alternate weekends, Wednesday evenings, and a fixed holiday schedule. Ms. Johnson sought to maintain the shared parenting arrangement in the final order under review and disputed that there had been a material change in circumstances. If the schedule were to be adjusted she supported a week-about shared parenting arrangement.

[5] The parties consented to various orders at the start of the trial but disagreed on the issues of decision-making and parenting time, including the holiday schedule. The consent also included an agreement on child support depending on the parenting order made.

[6] The court found that there had been a material change in circumstances and made an order for joint decision-making with primary residence with the respondent during the school week with an equitable sharing of other times.

[7] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under Rule 2 (2) of the Family Law Rules. Mattina v. Mattina, 2018 ONCA 867.

[8] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002 SCC 25, 2002, S.C.C., paragraph 25.

[9] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ- Family Court). To determine whether a party has been successful, the court should examine who was the successful party, based on the positions taken in the litigation. Lazare v. Heitner, 2018 ONSC 4861. This assessment includes the positions taken in the pleadings, and the specific relief sought at the hearing, if different. Kyriacou v. Zikos, 2022 ONSC 401. The court may also take into account how the order compares to any settlement offers that were made. Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ); Todor v. Todor, 2021 ONSC 3463; Kyriacou v. Zikos, supra.

[10] Rule 18 (14) of the Family Law Rules reads as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER 18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[11] The court has a discretion to take into account any written offer to settle, the date it was made and its terms, even if Rule 18(14) does not apply, when exercising its discretion over costs. (Rule 18(16)).

[12] The respondent submitted 2 offers to settle. The first dated October 11, 2022 which was referenced as “the settlement conference offer”. It was not made clear, but I took this to mean that it was the offer which was filed as part of the settlement conference brief.

[13] The respondent provided a severable offer to settle dated March 14, 2024 which included the following:

1. Joint decision-making with the respondent having final decision-making authority.
2. Parenting time to the applicant on alternate weekends to Monday morning.
3. Shared parenting during the summer holiday.
4. Respondent to have Christmas each year from December 23-26, the applicant having parenting time December 26-31.

[14] The applicant also submitted 2 offers to settle from settlement conference briefs dated October 11, 2022 and May 30, 2023.

[15] The applicant submitted a further offer of March 15, 2024 which included the following:

1. Joint decision-making.
2. Week- about shared parenting.
3. Equal sharing of holidays on an alternating basis.

[16] Subrule 17(23) of the Family Law Rules is clear that no brief, evidence or statement made at a settlement conference is to be disclosed unless in an agreement reached at a settlement conference or an order. There is no exception for the offers to settle in a settlement conference brief to be disclosed in submissions for costs. Entwistle v. MacArthur, 157 (SCJ - Ont. Fam. Ct.); G.H.F. v. M.D.E., 2019 ONCJ 766; Farooq v. Majeed, 2011 ONCJ 827.

[17] As such, the only offers for consideration include the offer of the applicant dated March 15, 2024 and the offer of the respondent dated March 14, 2024, both of which were served less than a week before trial commenced on March 18, 2024.

[18] The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. Neilipovitz v. Neilipovitz, 2014 ONSC 4409.

[19] Close is not good enough to attract the costs consequences of 18 (14). The offer must be as good as or more favourable than the trial result. However, even if the offer does not attract the costs consequences set out in Rule 18 (14), it may be considered under Rule 18 (16). Gurley v. Gurley, 2013 ONCJ 482.

[20] The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. Wilson v Kovalev, 2016 ONSC 163.

[21] The court must also consider if there was divided success. Rule 24 (6) states that if success in the case is divided, the court may apportion costs as appropriate. Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.

[22] There was clearly divided success in this matter and neither party met or exceeded their offer to settle.

[23] The respondent was successful in establishing a material change in circumstances and in achieving primary residence during the school week. He was not successful in obtaining sole decision-making or final decision-making in the case of a joint decision-making order and a dispute between the parties. He was also not successful in his trial position of limiting alternate weekends to Sunday rather than Monday, or in the holiday schedule he advocated for up until closing arguments.

[24] The applicant was successful in maintaining joint decision-making without a provision that the respondent have final decision-making authority in the case of a dispute. She was also successful in achieving the summer and holiday schedule she sought, and extending her alternate weekends to Monday mornings rather than Sunday night. She was not successful in challenging the claim that there had been a material change in circumstances, or of maintaining the shared parenting arrangement during the school week.

[25] Based on the positions taken by the parties in their pleadings, at trial, and in their offer to settle, I find that there was roughly equal success, although the respondent may have been somewhat more successful overall.

[26] An award of costs is subject to: 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. Berta v. Berta, 2015 ONCA 918 at para. 94.

[27] In making this decision the court has considered the factors set out in Rule 24 (12) of the rules which reads as follows:

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, (vi) 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.

[28] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(12)(a) (1) above). It reads as follows:

DECISION ON REASONABLENESS (5) 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.

[29] Both parties approached aspects of this matter in a reasonable fashion. They consented to various orders at the beginning of trial including terms related to parenting time and child support depending on the parenting order made. This was appropriate and reduced the trial time required. Further, up until trial all the substantive orders made throughout this matter were made on consent.

[30] However, there were aspects of both parties approaches to this matter which were unreasonable.

[31] Throughout the trial the respondent sought to limit the applicant’s parenting time in the summer despite his evidence that there was a shared arrangement in the summer of 2023 and that it had occurred without issue. He also sought an order that he maintain Christmas every year from December 23 to December 26 which meant that the child would never spend Christmas Day with his mother.

[32] It was only in closing arguments that he conceded through his counsel to the applicant’s position on these issues and the manner she proposed to share other holiday weekends throughout the year.

[33] As the court pointed out in the Reasons, these orders that the applicant requested would have been made regardless of the respondent’s position. As these concessions were made only during closing arguments, any trial time that could have been saved was nonetheless consumed as both parties were required to present evidence on these issues.

[34] Mother’s position that there was no material change in circumstances was likewise not reasonable. Her own evidence made it clear that the particular shared schedule in the order under review, which required multiple moves for the child during the school week, was no longer working for the parties or child. She acknowledged that it resulted in significant conflict, which she conceded had reduced significantly since the order was changed on a temporary basis.

[35] Based on her own evidence there were compelling grounds to establish a material change in circumstances. Further, given the clear evidence of the child’s views and preferences, combined with the evidence from the school of his modest improvement since the change in the schedule, continuing to litigate for the return to the shared arrangement during the school week was not reasonable.

[36] However, she consented during this proceeding to a temporary order to vary the shared schedule to one where the child was primarily with the respondent during the school week. This was clearly a difficult decision for her to make. However, it was a reasonable and child focused decision in all the circumstances.

[37] Taking into account the totality of the circumstances there were aspects of both parties approaches which were reasonable and unreasonable.

[38] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.

[39] This matter involved decision making, the parenting schedule, and child support for one child. The issues were clearly important to the parties in the context of this family and were not complex. On the basis of the roughly equal and divided success, and the reasonable and unreasonable behaviour of each party at various times, I am not satisfied that entitlement to costs has been established or that a costs order would be appropriate.

[40] This trial was not necessary, and both parties should have done more to avoid it. The parties shall bear their own costs.

Released: May 24, 2024 Signed: “Justice S. E. J. Paull”