Court File and Parties

Court File No.: FS-11-365406
Date: 2013-08-28
Superior Court of Justice - Ontario

Re: Vanessa Duarte, Applicant

** - and -**

Rodolfo Simoes Ferreira Duarte, Respondent

Before: Stevenson, J.

Counsel:
Piotr Szajak, for the Applicant
Jaret N. Moldaver, for the Respondent

Heard: July 16, 2013

ENDORSEMENT AS TO COSTS

[1] In my endorsement dated July 17, 2013 with respect to the motions brought by the parties I urged the parties to agree on costs, but asked that if they were unable to do so they provide me with their written submissions. I have now had an opportunity to review the costs submissions of both parties.

[2] The applicant seeks that the parties bear their own costs or, in the alternative, she seeks an order that the issue of costs be reserved for the trial judge as she submits that a number of issues on the motions were deferred to be determined at trial and as such the trial judge will be in the best position to fix costs. If costs are ordered, the applicant seeks that costs be in the maximum amount of $2,500, inclusive of HST and disbursements, payable in monthly installments over a 15-month period commencing in 90 days. The respondent seeks costs in between full recovery and partial indemnity in the amount of $18,500, plus HST as he submits that he was successful on the motions.

Success

[3] Under Rule 24(1) of the Family Law Rules (the "FLRs"), there is a presumption that a successful party is entitled to costs. The applicant submits that the results on the motion were mixed. She contends that the respondent obtained more time with the parties' daughter, Gabriella, but not to the extent that he was seeking, he did not obtain an order allowing for travel out of the country or an order for the court to review the parenting arrangements in six months with the goal of obtaining further access increases. The applicant further submits that she was successful in that she obtained an order on consent requiring the respondent to pay section 7 arrears, a severance order with respect to the divorce and the Court did not find that the applicant was engaged in "coaching" or a "campaign of parental alienation". She further submits that she was successful in defending against all allegations of misconduct.

[4] The respondent contends that he consented to the issues of payment of section 7 expenses and the severance of the divorce prior to the hearing of the motion, he was successful in obtaining an order expanding his parenting time to include overnights, he obtained an order for daily telephone access without interference by the applicant, an order entitling him to attend all school functions and events and he was also granted a right of first refusal. He further contends that he was successful in that an order was made that the parties share equal time with Gabriella during all holidays after the completion of stage 1 of the expanded time with Gabriella.

[5] Upon reviewing the relief sought by the parties and the order granted, the respondent was substantially successful and is entitled to some costs. The respondent's motion primarily focused on the expansion of his time with Gabriella to include overnights, along with seeking an order requiring the applicant to facilitate and promote telephone access and an equal sharing of time on holidays and special occasions.

[6] Although the expansion of the respondent's time with Gabriella ordered was not exactly as sought by the respondent in that there was an initial 12-week period of expanded access ordered, including overnights (as opposed to the 4-week period sought), followed by an increase in overnight access to include alternating weekends and one evening each week, as well as an equal sharing of holidays after the completion of the first stage, the respondent was substantially successful in obtaining overnights and a significant portion of the other relief sought.

[7] In contrast to this, the applicant sought a dismissal of the respondent's motion and she was resistant to any overnight access. Further, although I did not find that there was any evidence at this stage that the applicant was attempting to "alienate" Gabriella from the respondent as alleged by the respondent, I was concerned that the move to an expansion of the respondent's time with Gabriella to include overnights would not take place without a Court order given the applicant's resistance to overnight access.

[8] Additionally, the applicant was seeking to delay the determination of the issue of overnight access a further 3 to 6 months and wanted transitions to take place at a supervised access centre. This relief was not granted. She further sought an order for temporary custody which was also not granted, but left to be determined at trial.

Offers to Settle

[9] Both parties served Offers to Settle. Rule 18 of the FLRs deals with Offers to Settle. Rule 18(14) describes the cost consequences of failing to accept an offer as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(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. O. Reg. 114/99, r. 18 (14).

[10] Neither party's offers fulfilled the criteria set out in Rule 18(14)5. The applicant served an Offer to Settle on July 14, 2013. The majority of the terms of her offer were not granted and the issues of the severance of the divorce and section 7 expenses were consented to prior to the commencement of the hearing of the motions.

[11] The respondent served an Offer to Settle on July 15, 2013 at 2:44 pm., in the late afternoon the day before the hearing of the motion. Some of the terms of the offer were similar to those as set out in the order; however, the proposal with respect to the respondent's expanded time with Gabriella was not the same given the first stage of expanded time was for a 12-week period, not the 4 weeks sought by the respondent. The overnights granted in stage 1 are from Friday after school to Saturday at 8:00 p.m., differing from the offer. In stage 2, the respondent was successful in that the order grants the respondent time with Gabriella every other weekend from Friday to Monday whereas the offer was from Friday to Sunday evening. Every Wednesday overnight was granted whereas the offer was for Tuesdays and Thursdays not to include overnights.

[12] In the order holidays are to be equally shared but not until the completion of stage 1. This differs from the offer by the respondent which included a provision that holidays were to be shared immediately. Daily phone contact, attendance at school functions/events and a right of first refusal were granted to the respondent, provisions similar to the offer made by the respondent.

[13] Both parties' offers are still a relevant consideration under Rule 18(16) which states: "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."

[14] The factors that a court must consider in determining costs are set out in s. 24(11) of the FLRs as follows:

The Importance, Complexity or Difficulty of the Issues

[15] The most significant issues on these motions were the issues of custody and access which are clearly important to both parties. Much material was filed containing conflicting evidence. The applicant filed a cross motion with substantial materials claiming significant relief. Normally the court requires a long motion date to be scheduled when such relief is sought and lengthy materials filed. However, given the importance of the issues I proceeded with the hearing of the motion on the regular motions list which took up a significant period of time.

The Reasonableness or Unreasonableness of Each Party's Behaviour in the Case

[16] Both parties raised allegations of inappropriate conduct by the other party. It appears at times both parties have acted unreasonably as set out in the OCL report and in comments that have been made by Gabriella regarding her parents' behaviour.

The Lawyers' Rates

[17] I consider the rates of both counsel to be reasonable. The applicant's counsel charged a rate of $187.50 per hour which is extremely reasonable for counsel in Toronto with his experience. Counsel for the respondent charged an hourly rate of $475 which is also reasonable for counsel in Toronto given his years of experience.

The Time Properly Spent on the Case

[18] The time spent by counsel for the applicant of 16 hours is very reasonable. However, I do have concerns with respect to the substantial amount of time spent by counsel for the respondent, in particular the time spent by junior counsel (41.7 hours) at a rate of $275 per hour and the additional hours spent by two law clerks. The total time spent by the respondent's two counsel and two law clerks is 73.1 hours which is excessive. While the issues on these motions are important and I have taken into consideration the respondent's submissions that the actions of the applicant and/or her counsel led to increased costs (which is disputed by the applicant), proportionality needs to be considered. The total amount of time spent by counsel and law clerks for the respondent is excessive for these types of motions and for motions that were confirmed by counsel to only require one hour of the Court's time.

Expenses Properly Paid or Payable

[19] I have reviewed the expenses claimed by the parties and find the expenses claimed by the respondent for photocopies, printing and scanning of $467.44 to be somewhat excessive. I do not find the expenses claimed by the applicant to be unreasonable.

Any Other Relevant Matter

[20] Rule 24(11)(f) of the FLRs states that a person setting the amount of costs shall consider any other relevant matter. As noted by Justice Rosenberg in C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 176 O.A.C. 201, 67 OR (3d) 181; 231 DLR (4th) 479; 43 RFL (5th) 149; at para. 42, in setting the amount of costs, the financial positions of the parties and the impact on the best interests of the child may be taken into consideration which I have also considered.

Order

[21] Taking into consideration the submissions of the parties, the fact that the respondent has been substantially successful, the factors outlined above that I have considered under Rule 24(11) and Rule 18, including the offers served by the parties and proportionality, the applicant shall pay costs to the respondent in the amount of $4,000, inclusive of HST and disbursements, payable within 90 days.

Stevenson J.

DATE: August 28, 2013