CITATION: Alden v. Thomas, 2012 ONSC 422
COURT FILE NO.: FC-08-2935
DATE: 20120117
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PATRICK ALDEN
Tania Pompilio and M. Murray Ages, for the Applicant
Applicant
- and -
KIMBERLEY J. THOMAS
Rodney B. Cross, for the Respondent
Respondent
HEARD: By Written Submissions
DECISION ON COSTS
J. Mackinnon J.
[1] This was a five-day custody trial. The applicant seeks substantial indemnity costs of $86,832 inclusive of fees, disbursements and H.S.T. These costs relate only to the period following the release of Dr. Leonoff’s report on July 26, 2011.
[2] The applicant is also seeking costs of the motion to order the Leonoff assessment which motion settled on June 14, 2010. The motion judge reserved the issue of costs to the trial judge. The applicant seeks $10,617.60 substantial indemnity costs with respect to that motion.
[3] The applicant was the successful party at trial. He relies on his success, on his offers to settle and on alleged unreasonable litigation conduct by the respondent in support of his claim for substantial indemnity costs.
[4] The respondent disputes the applicant’s entitlement to costs and alternatively seeks an award of costs against her in a significantly lower amount than is claimed.
[5] No costs are awarded with respect to the June 14, 2010 motion. Section 24(10) of the Family Law Rules, O. Reg. 114/99 states as follows:
COSTS TO BE DECIDED AT EACH STEP
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
[6] The Court of Appeal considered this provision in the case of Islam v. Rahman, 2007 ONCA 622, [2007] O.J. No. 3416 (C.A.). At para. 2 the court stated:
However, we accept the appellant's submission that the trial judge erred in failing to exclude from the award of costs amounts claimed for steps taken in the case where no order was made as to costs or where there was silence on the issue. Rule 24(10) of the Family Law Rules provides that the judge who deals with a step in a case shall decide who, if anyone, is entitled to costs. If a party who has served an offer to settle the case as a whole wishes that fact taken into consideration in relation to a particular step, it is incumbent on that party to raise that issue with the judge who deals with that step. In this case, various steps were taken (e.g. motions, conferences) in relation to which either there was an endorsement that there be no order as to costs or the issue of costs was not addressed. In the absence of a specific order for costs in favour of the respondent, the trial judge should have disallowed costs claimed by the respondent in relation to such steps. (emphasis added)
[7] The reservation of costs to the trial judge does not comply with s. 24(10) of the Family Law Rules nor with the decision of the Court of Appeal in Islam, supra.
[8] Counsel for the applicant has referred to comments apparently made by the motion judge which encouraged the settlement of the two motions before her. I agree with the respondent’s counsel that this reference is inappropriate. If the comments were made by way of encouraging settlement then, they are inadmissible for that reason. Respondent’s counsel also notes that his colleague referred to only one of many statements that the motion judge apparently made, directed to both parties, not only to the respondent. I put no weight upon the applicant’s submissions in this regard.
[9] This is not a case where the applicant is entitled to substantial indemnity costs. The provisions of s. 18(14) of the Family Law Rules are not applicable here. The applicant correctly points to various findings made in my Reasons for Judgment indicative of unreasonable behaviour on the part of the respondent. However, my Reasons made clear that the applicant responded in kind. The dysfunctional dynamic which I identified between these parties is not a one sided affair.
[10] The applicant also submits that the respondent was entrenched in her refusal to settle the case. Applicant’s counsel refers to the respondent’s position taken at a settlement conference on September 23, 2011. In my view all of these references are improper and should not have been made. The confidentiality provisions of rule 17(23) of the Family Law Rules are applicable to the positions taken by parties during a settlement conference.
[11] At some point the parties were informed that another judge was available to conduct a third settlement conference on the morning the trial was scheduled to start. I put little weight on the respondent’s rejection of that idea. The applicant proposed a “mid trial” settlement conference after Dr. Leonoff had testified, which the respondent also declined. It is disturbing to me that applicant’s counsel reports on statements made to her by the respondent’s counsel in connection with proposals for late coming and mid trial conferences. The Court does not wish to be called upon to adjudicate between counsel as to what was or was not said between them. These statements may well be by way of explanation of the client’s position or views of the likelihood of settlement. Settlement is encouraged but is not required and a trial is not always an unreasonable process. The issues tried were eminently triable and I do not regard the respondent’s willingness or not to attend a settlement conference at the commencement of or during the trial itself as a factor that should increase the amount of costs awarded.
[12] I am also of the view that the award of costs should reflect the unusual feature of this case namely, that the vast majority of the issues between the parties were settled and the trial proceeded on a few narrow issues only. Whereas the applicant’s partial indemnity bill of costs reflects hourly rates approximately 67% of substantial indemnity, I am of the view that this fact warrants a partial indemnity rate in a lower range of 60%.
[13] There was also divided success in the case. I accept the applicant’s submission that approximately 80% of the trial time related to the custody and access issues. However, the property issues were settled in favour of the respondent on the opening day of trial and the respondent was the more successful party on the issue of spousal support. Success may also be regarded as divided in terms of the applicant’s mid-week access and the partial order made with respect to the respondent’s claim for a restraining order.
[14] The respondent submits that the applicant had two counsel whereas one would have been sufficient. I agree that this was not a case that required two counsel and note that the applicant has already made a reduction from trial attendance time for both counsel in partial recognition of this.
[15] The respondent also submitted that she was not unreasonable in taking the issue of sole versus joint custody to trial having regard to the conflict between the parties. As already stated, I agree that this was definitely a triable issue and that although unsuccessful the respondent’s claim for sole custody was not unreasonable nor outside the range of possible reasonable outcomes for the trial. I agree that some weight should be given to this factor in the quantification of costs.
[16] I also accept that the court may consider the financial ability of the respondent in terms of the quantification of the award of costs. The pursuit of this litigation may well fall into the “financially ruinous” category for both litigants. The fact remains that the applicant is in a somewhat more advantageous financial position than the respondent.
[17] The fact also remains that the applicant was successful at trial on the majority of issues litigated. Having regard to all of the facts set out above I have fixed his costs inclusive of fees, disbursements and HST at $27,650. The $8,000 portion of the property settlement payable to the respondent shall be set-off against that amount leaving a balance owing to him of $19,650.
J. Mackinnon J.
Released: January 17, 2012
CITATION: Alden v. Thomas, 2012 ONSC 422
COURT FILE NO.: FC-08-2935
DATE: 20120117
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PATRICK ALDEN
Applicant
- and –
KIMBERLEY J. THOMAS
Respondent
DECISION ON COSTS
J. Mackinnon J.
Released: January 17, 2012