Court File and Parties
Court File No.: FS-08-062531-02
Date: 2013-09-06
Superior Court of Justice – Ontario
Re: Sharon A’Court, Applicant
and
Howard A’Court, Respondent
Before: Lemon J.
Counsel:
Warren W. Tobias, for the Applicant
Marty Klein, for the Respondent
Heard: August 23, 2013
Endorsement
THE ISSUE
[1] Mr. A’Court moves for an order staying these proceedings while the outstanding issues are referred to mediation/arbitration and a parenting co-ordinator. He also seeks an order compelling Ms. A’Court to attend for mediation and arbitration.
THE BACKGROUND
[2] The parties need assistance to resolve issues surrounding child support as well as custody and access to their two children.
[3] Their separation agreement sets out the following dispute resolution term:
6.1 If the parties disagree about a reviewable or variable term of this Agreement, they will try to resolve the dispute through negotiation, either between themselves or with their respective counsel.
6.5 If the parties cannot agree within 45 days of the initial request for review or variation, they will submit the dispute first to mediation and then to arbitration.
6.2 The parties shall mutually appoint a mediator and/or an arbitrator. If they cannot agree on who shall be appointed as mediator and/or an arbitrator, that question can be submitted by either party to a court of competent jurisdiction. The arbitration will be conducted in accordance with the Arbitration Act, and will constitute a secondary arbitration under the Arbitration Act and the Family Statute Law Amendment Act.
[4] The parties are also bound by an order of Justice van Melle dated February 9, 2009. That order appears to be on consent. It states:
- The parties will jointly make important decisions about the children’s welfare, including decisions about their:
(a) Education;
(b) Major non-emergency health care;
(c) Major recreational activities, and
(d) Religious activities.
- If the parties cannot agree, they will refer the dispute to a parenting monitor who shall be mutually appointed by the parties and who shall meet with the parties, hear the dispute and then make the final decision for the parties. The parenting monitor’s decision shall be final and binding on the parties without any right of appeal. The parties shall share equally the costs of the parenting monitor. If the parties cannot agree on who will be the parenting monitor, either party is free to have such question determined by a court of competent jurisdiction. Any dispute relating to the specific scheduling of access shall be referred to the parenting monitor.
[5] In her responding affidavit, Ms. A’Court says: “It is my position that I am prepared to consent to the making of such an Order, however, I wish the Court to order Howard A’Court to pay my costs thrown away in defending this proceeding to date”. [Emphasis added]
[6] She goes on to say:
19 Attached to this Affidavit as Exhibit “H” is copy of a Bill of Costs which has been prepared by my counsel concerning the amounts spent in defending these court proceedings. Justice Daley ordered Howard A’Court to pay $300.00 as a result of a Motion that he brought for a stay of proceedings. At the settlement conference Mr. A’Court was ordered to pay $500.00 for the costs of attending the settlement conference. Mr. A’Court also brought a Motion citing me for contempt for failure to give him Christmas access in 2012. He lost that motion and was ordered to pay me $2,000.00 in costs. All of those costs Orders have been complied with and the Bill of Costs does not set out any amounts whatsoever in respect of matters that have already been the subject of a costs award.[Emphasis added]
20 It seems blatantly unfair to me that Mr. A’Court would bring a Motion to change, file a Notice withdrawing that Motion, would then proceed to refuse to give adequate and proper financial disclosure, and would again bring a Motion to change, only to now indicate that the proper manner in which to proceed is mediation/arbitration, but not feel compelled to pay my costs thrown away in defending court proceedings which should have never been brought in the first place.
ANALYSIS
[7] Despite the conditional acceptance of the requested order by Ms. A’Court, Mr. Tobias confirmed at the commencement of the motion that he does not dispute that the action should be stayed and a mediator/arbitrator must be appointed. That seems readily apparent from the agreement. Neither party made submissions as to the appropriateness of Justice van Melle’s Order. Accordingly, I make no comment with respect to that term and leave the parties to their agreement and consent.
[8] The real issue between the parties is whether Mr. A’Court should pay costs. The Bill of Costs sets out costs totalling $36,370. At the motion, Mr. Tobias submitted that the appropriate Order would be for two thirds of that amount or $24,000.
[9] Although Ms. A’Court has not served and filed a notice of motion seeking costs, Mr. A’Court was well aware that was one of the two issues to be resolved in his motion. He does not appear to be prejudiced by such a lack of formal notice.
[10] Rule 24 of the Family Law Rules sets out subsections:
(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
(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.
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. (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.
(11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[11] Despite Ms. A’Court’s affidavit, there appears to be in excess of 12 hours relating to a settlement conference. Indeed, after the motion was argued on August 23, 2013. Mr. Tobias wrote on August 24, 2013, saying:
Upon further review of the file, I noted that in fact Exhibit “H” indicated an amount that was $11,240.00 higher than it should have been.
When I appeared before you I indicated that none of the amounts set out in Exhibit “H” duplicated amounts that had already been the subject of previous costs orders.
Upon further review of the file I discovered that that submission was not in fact correct. I did not include in Exhibit “H” the cost of my attendance for the Settlement Conference which was held on September 27th, 2013[sic], however I did discover that in fact an extensive bill of costs had been presented on that date, a copy of which I enclose.
These items amount to $11,240.00 and should be deleted from Exhibit “H” with the result that the actual bill of costs should total $25,130.00 and not the amount of $36,370.00 which appears as the total of the bill of costs.
[12] I presume then that Mr. Tobias seeks an order of two-thirds of that amount or approximately $16,000.
[13] The Bill of Costs suggests a solicitor client amount of $400 per hour.
[14] There was a significant error in the Bill of Costs. I am not confident that it accurately sets out the applicable work. The hourly rate is on high side. The time spent is equally so.
[15] Mr. A’Court appears to be complying with his disclosure obligations since the arrival of Mr. Klein; I can put some of his delay down to simple ignorance of his requirements. Certainly, any further delay in proper production could only be explained by intentional acts to subvert the process. Such delay will result in further costs orders and could well result in Mr. A’Court’s claims being dismissed by either the arbitrator or this court.
[16] Mr. Tobias was one of the drafters of the agreement; he would have been well aware that this matter should have been taken out of the courts and into arbitration. Ms. A’Court’s conditional acceptance of that term up to the commencement of argument was unreasonable.
[17] The costs of the various steps to date have already been determined by the Orders set to date pursuant to Rule 24 (10). Some of this request seems to overlap with those steps. Other work appears to be proper preparation for the arbitration and will be dealt with by the arbitrator.
[18] Taking all of those circumstances into consideration, I decline to make a further Order for costs as requested by Ms. A’Court. Her request is more properly addressed by the arbitrator.
[19] If Mr. A’Court thinks it appropriate to make submissions as to costs, those submissions shall be made within the next 30 days. Any responding submissions will be filed within 15 days thereafter. Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.
Lemon J.
Date: September 6, 2013
COURT FILE NO.: FS-08-062531-02
DATE: 2013-09-06
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Sharon A’Court, Applicant
and
Howard A’Court, Respondent
BEFORE: Lemon, J.
COUNSEL: Warren W. Tobias, for the Applicant
Marty Klein, for the Respondent
ENDORSEMENT
Lemon, J.
DATE: September 6, 2013