COURT FILE NO.: FC-13-2466
DATE: 20140930
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROSALINE JUDITH HILL, Applicant
AND
ALAIN JOSEPH ACHKAR, Defendant
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Jennifer Johnston, for the Applicant
Ernest G. Tannis, for the Defendant
HEARD: By written submissions
COSTS ENDORSEMENT
[1] On August 20, 2014, the Applicant brought a motion to address the children’s schooling for the 2014 school year. I accepted the recommendations of Sally Bleeker and I directed the parents to attend at Terre-des-Jeunes school and follow through with any steps that may be necessary to have the girls enrolled in the school.
[2] In the event that an enrolment in the two schools identified by Ms. Bleeker was not possible, I agreed that the next best alternative would be that the girls be enrolled in the Churchill Alternative school. The girls are in fact enrolled and are attending Terre-des-Jeunes. The Applicant now seeks an order that the Respondent pay her costs on a substantial indemnity basis from the date of the Notice of Motion filed on June 25, 2014 until the date that Sally Bleeker’s recommendations were received on August 14, 2014. Thereafter, she seeks her costs on a full indemnity basis to the date of the motion for a total amount of $8294.48, inclusive of tax.
[3] The Applicant says that she had made three Offers to Settle, whereas, the Respondent made two Offers to Settle. Rule 24 (1) of the Family Law Rules provides that a successful party is presumptively entitled to costs. Rule 18(14) makes reference to Offers to Settle and states:
“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 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.
The offer does not expire and is not withdrawn before the hearing starts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.
[4] The Applicant submits that all three of her Offers meet that test. The Applicant made an Offer to Settle this issue on August 15, 2014. She offered to attempt enrolment of the children at Édouard Bond, secondly Terre-des-Jeunes, then St. George’s Catholic Elementary. The Respondent made an Offer to Settle this issue on August 15, 2014. He offered that the parties enrol the children at a private school; Académie Providence School.
[5] On the return of the motion, there was an issue with respect to telephone access but the parties settled this prior to the hearing of the motion. The Applicant mother nevertheless claims success.
[6] There was a further issue with respect to child care. The mother was successful again in obtaining the relief sought; namely that she may continue to employ Kayleigh Comas, to babysit the children during the remaining two weeks of summer vacations.
[7] The significant issue was schooling. The Applicant mother claims that she was successful in obtaining the relief sought in her Amended Notice of Motion: that the children be enrolled in the public school in the Applicant’s catchment area. As noted above, the Court supported the placement of the children at Édouard Bond, Terre-des-Jeunes, or in the alternative, Churchill Alternative as recommended by Ms. Bleeker.
[8] The identification of the children’s school is of critical importance to the parties. Sally Bleeker was specifically requested to make a recommendation on this very issue. The parties held strong views. Counsel for both parties cited decisions from the Ontario Court of Appeal and put forward a detailed factual examination of the circumstances of these particular children as required by the case law.
[9] The Applicant’s counsel has set out the hourly rates that were charged. I noticed that the maximum rate for Mrs. Johnston, who was called to the bar in 2012, is $185 (per hour). I have examined the Bill of Costs and it is reasonable, other than the approximately $1500 that was charged for research.
[10] The Respondent father does not dispute the accuracy of the Offers to Settle made by both sides. The Respondent argues that neither party should be awarded costs. In the alternative, he requests that if any costs are to be awarded, these should be limited to the period from August 14, 2014 (the date of service of the Amended Notice of Motion), to the hearing date of August 20th, 2014 and that these should be calculated on a partial indemnity basis. He concludes that if any costs are to be awarded, they should be in any event of the cause. (Although I believe he intended in event of the cause.)
[11] The Respondent notes that Rule 24(1) provides for a presumptive entitlement of costs in favour of a successful party, but that a judge has the discretion to award less than a full recovery of costs or, indeed, no costs at all.
[12] The Respondent particularly invites me to consider the situation of a party who is “cash strapped” and who has been asked to pay both child support and costs. He cites case law in support of the position that the best interests of the child are paramount, and the continuance of child support payments should take priority over paying the successful party’s costs.
[13] The Respondent’s ability to support the costs of the children’s private school tuition was an issue for the motion. The Respondent initially sought a reduction in child support so that he could afford tuition at the private school. The Respondent then took the position that he would find a way to do this and that his family would come to his assistance.
[14] The Respondent notes that I flagged these proceedings as “high conflict.” He notes there are other unresolved issues and that the parties will incur future legal costs for other motions or trial, and that some of these costs may be awarded in his favour.
[15] Since the issue of telephone access was resolved, the Respondent claims there should be no costs. On the issue of child care, the Respondent maintains he was never acting in bad faith in suggesting that his sister and mother take care of the children.
[16] As for the issue of schooling, the Respondent notes when the Notice of Motion was first filed and served on June 25, 2014, the parties had complete contradictory positions. Moreover, the Respondent notes the costs were not sought in that Notice of Motion but only in the Amended Notice of Motion which was served on August 14, 2014. It was only then that the Applicant mother made a request for French language schools as alternatives as well as requesting costs. The Respondent also notes that until the parties received the assessor’s recommendations on August 14, 2014, each of them had opposing positions that were not in accordance with the Endorsement and with the assessor’s report. It was only after the submission of the assessor’s report that the Applicant aligned her position to that of the assessor’s recommendations.
Conclusion
[17] In my view, the Applicant was successful however; I accept the Respondent’s argument that her claim for costs should be limited from the date of August 14 onward. Nevertheless, the Respondent refused to accept the recommendations of Ms. Bleeker, the assessor specifically hired by the parties to make recommendations on the issue of schooling. The motion was argued and the Applicant was successful.
[18] While the Respondent claims financial difficulties, he repeatedly assured the Court that he would find the means to pay for the girls’ private school education over and above child support if that was necessary. He indicated that his family would help out. It is to be noted that the Applicant herself has limited means and she should not be burdened with the costs of litigation when the Respondent takes an unreasonable position; namely, that the girls attend a private school without a clear plan in place to pay for it or to arrange for their transportation. While the telephone access was settled; this was only settled at the last minute. It was necessary for the Applicant to seek this relief because the Respondent was unnecessarily involving the police with his access complaints.
[19] The Applicant was also successful on the child care issue; a two-week period. The Applicant proposed that the girls’ daycare provider continue to look after them until school started. She was not looking for any financial contribution from the Respondent. This is one more issue that had to be argued and the Applicant was successful.
[20] Having regard to the Applicant’s success of her Offer to Settle, I conclude that Rule 24(1) is applicable and award the Applicant her costs on a substantial indemnity basis from the date of August 14, which I fix in the amount of $3500, plus disbursements of $316.49. HST is to be added to those amounts.
Mr. Justice Robert N. Beaudoin
Date: September 30, 2014
COURT FILE NO.: FC-13-2466
DATE: 20140930
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ROSALINE JUDITH HILL, Applicant
AND
ALAIN JOSEPH ACHKAR, Defendant
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Jennifer Johnston, for the Applicant
Ernest G. Tannis, for the Defendant
HEARD: By written submissions
costs ENDORSEMENT
Beaudoin J.
Released: September 30, 2014