DATE: August 2, 2024 COURT FILE NO.: D81564/15 ONTARIO COURT OF JUSTICE
B E T W E E N:
MARY SHANNON CULLEN Applicant
GLENDA PERRY, for the Applicant
- and –
MATTHEW BRENNAN Respondent
ANDREW VANKOUGHNETT, for the Respondent
HEARD: In Chambers
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On July 3, 2024, the court delivered oral reasons authorizing the applicant to relocate to Orillia, on a temporary basis, with the parties’ two children (ages 14 and 12).
[2] The parties were given the opportunity to make written costs submissions. The applicant seeks costs of $9,136. The respondent submits that no costs should be paid.
Part Two – General Costs Principles
[3] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:
a) to partially indemnify successful litigants; b) to encourage settlement; c) to discourage and sanction inappropriate behaviour by litigants and; d) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).
[4] 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. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25.
[5] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[6] An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.
Part Three – Offers to Settle
3.1 Legal Considerations
[7] Subrule 18 (4) sets out that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any.
[8] Subrule 18 (14) sets out the consequences of a party’s failure to accept an offer to settle that is as good as or better than the trial result of the person making the offer. It 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:
- If the offer relates to a motion, it is made at least one day before the motion date.
- 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.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[9] Even if subrule 18 (14) does not apply, the court may take into account any written offer to settle, the date it was made and its terms when exercising its discretion over costs (subrule 18 (16)) or, in assessing the reasonableness of a party under sub-clause (iii) of subrule 24 (12) (a).
[10] The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz, 2014 ONSC 4590.
[11] 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. See: Wilson v. Kovalev, 2016 ONSC 163.
[12] 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. See: Gurley v. Gurley, 2013 ONCJ 482.
[13] The rebuttable presumption in subrule 18 (14) also confers discretion on the court to “order otherwise” even where that subrule is presumptively engaged. See: Snelgrove v. Kelly, 2017 ONSC 4625. The court may consider it appropriate to order otherwise for a variety of reasons. See: F.S. v. N.J., 2024 ONCJ 276.
3.2 The Offers to Settle
[14] Both parties made offers to settle.
[15] The respondent made a non-severable offer dated June 26, 2024. The respondent proposed that the applicant could relocate with the children to Orillia if she agreed to a significant expansion in his parenting time. However, the urgent motions were restricted to the relocation issue. The respondent’s offer was not more favourable to the applicant than the final result. Subrule 18 (14) was not engaged.
[16] The applicant made an offer to settle dated June 23, 2024. It was at least as favourable to the respondent as the final result. The applicant offered to do all transportation for parenting time pursuant to the existing parenting time order if she was permitted to relocate with the children to Orillia. This was ordered. The applicant also proposed that no costs be payable if the offer was quickly accepted. Subrule 18 (14) was engaged by this offer. The applicant is presumptively entitled to her costs until June 23, 2024, and to her full recovery costs from that date.
3.3 Should the Court Exercise its Discretion and Order Otherwise?
[17] The costs consequences set out in subrule 18 (14) are rebuttable. The court has the discretion to order “otherwise”.
[18] The court finds that the presumption set out in subrule 18 (14) was partially rebutted by the respondent.
[19] Subsection 39.3 (1) of the Children’s Law Reform Act (the Act) sets out that a person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.
[20] The applicant notified the respondent on May 8, 2024, that she planned to relocate with the children to Orillia on July 4, 2024. This was just short of the 60-day notice requirement in the Act and will not affect the costs analysis.
[21] On June 5, 2024, the respondent, through his counsel, objected to the relocation.
[22] Subsection 39.4 (2) of the Act sets out that a person who has given notice of a proposed relocation in accordance with section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if,
(a) the relocation is authorized by a court; or (b) no objection to the relocation is made in accordance with subsection 39.3 (5) and there is no order prohibiting the relocation.
[23] Once the applicant received the notice of objection, she was required to have the court authorize the relocation. Instead, she advised the respondent on June 10, 2024, that she was relocating with the children to Orillia on July 4, 2024. This created additional costs for the respondent. He brought a Form 14B motion and obtained an early date for an urgent motion to prevent the relocation.
[24] The urgent motion returned to court on June 20, 2024. The applicant attended and was unrepresented. She sought and obtained an adjournment to obtain counsel and file her materials. On a without prejudice basis, the court ordered she could not remove the children’s residence from Toronto without further court order or the respondent’s consent.
[25] Given these circumstances, the court will not award costs to the mother prior to the date of her offer, and it will slightly discount her costs from the date of the offer.
Part Four – Other Legal Considerations
[26] Subrule 24 (12) 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: b) each party’s behaviour, c) the time spent by each party, d) any written offers to settle including offers that do not meet the requirements of rule 18, e) any legal fees, including the number of lawyers and their rates, f) any expert witness fees, including the number of experts and their rates, g) any other expenses properly paid or payable; and h) any other relevant matter.
[27] Even where the "full recovery" provisions of the Rules are triggered -- either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith -- quantification of costs still requires an overall sense of reasonableness and fairness. See: Goryn v. Neisner, 2015 ONCJ 318.
[28] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel.
[29] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.
Part Five – Analysis and Court Order
[30] This case was important to the parties. It was not complex or difficult. The court recognizes that considerable legal work was required in a very short time. The court commends counsel for the quality of their presentation of this matter.
[31] The parties acted reasonably by making offers to settle.
[32] The applicant should have brought the motion to authorize the relocation. She only did this once the respondent brought the matter to court.
[33] The respondent created minor additional costs by serving an amended notice of motion seeking expanded parenting time. The court had only authorized his urgent motion to stop the proposed relocation. He served the amended notice of motion the day before the motion. The court was not prepared to hear a motion to change a long-standing parenting time order on a day’s notice. This issue was put over to the case management judge who will determine if a parenting time motion is required.
[34] The applicant was successful on the motions. In its oral reasons, the court found the decision to permit the relocation was not a close call. The respondent has had supervised parenting time with the children since the existing order was made on August 11, 2016. The applicant has complied with that order. The move to Orillia would not change the parenting time schedule. The applicant was prepared to do all the transportation. The respondent should have consented to the relocation.
[35] The applicant’s counsel’s rates of $525 per hour are reasonable for a 1992 call to the bar.
[36] A comparison of counsels’ bills of costs informs the court that the time claimed by the applicant is a bit high – particularly since the respondent was required to prepare materials to obtain an urgent motion date and his counsel attended on the first appearance of his motion.
[37] The court finds that the respondent has the ability to pay the costs that will be ordered.
[38] The respondent should have reasonably expected to pay this level of costs if he was unsuccessful.
[39] An order will go that the respondent shall pay the applicant’s costs fixed at $5,000, inclusive of fees, disbursements and HST. The costs are due and payable in 45 days.
Released: August 2, 2024
Justice Stanley B. Sherr