MacDonell v. MacDonell, 2015 ONSC 2856

MacDonell v. MacDonell, 2015 ONSC 2856

COURT FILE NO.: 10-1401

DATE: 2015/04/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Chad Andrew MacDonell

Applicant

– and –

Jennifer MacDonell

Respondent

A. Lawrence Filion, counsel for the Applicant

Helene C. Desormeau, counsel for the Respondent

Written submissions

RULING ON COSTS

LALIBERTE, J.

1On February 25, 2015, the Court released its ruling concerning separate motions brought by both litigants. The parties have been unable to agree on the question of costs for these motions. The Court must therefore decide this issue.

2The Applicant’s position on costs is set out in his written submissions filed with the Court on March 20, 2015.

3Briefly, he is claiming entitlement based on success and an offer to settle which was rejected by the Respondent.

4His claim is in the amount of $4,031.84. He argues that this amount is appropriate considering the importance of the issue, the fact that he acted reasonably while the Respondent did not, the rate of counsel and the time spent.

5While he recognizes that ability to pay is a factor, he argues that the Respondent has chosen not to retain counsel and has acted unreasonably in this litigation. In turn, he has been compelled to incur increased legal fees.

6In her submissions which were filed with the Court on April 22, 2015, the Respondent argues that she is the successful party in these motions.

7She suggests that the Applicant has not acted reasonably. He has unreasonably resisted access for her to the children.

8The Respondent also relies on her limited ability to pay costs. She is on long term disability and is paying child support to the Applicant.

9The issues for the Court are:

a) Is either party liable for costs?

b) What is the quantum of liability, if any?

THE LAW

10A proper determination of costs in family law proceedings requires the Court to reflect on a myriad of factors. It is more than a simple mathematical or mechanical exercise. (Boucher et al v. Public Accountants Council for the Province of Ontario 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ontario Court of Appeal). As stated by the Ontario Court of Appeal in Somers v. Fournier 2002 CanLII 45001 (ON CA), [2002] O.J. No. 2543 at paragraph 17:

“Thus, costs are both a discretionary indemnification device and a mechanism by which abuses of the Court’s processes may be deterred and penalized. Costs are routinely used by Ontario Courts to reward or sanction the conduct of parties prior to and during the litigation process…”

11The fundamental purposes of costs rules have been identified as follows:

1. To partially indemnify successful litigants for the cost of litigation;

2. To encourage settlement;

3. To discourage and sanction inappropriate behaviour by litigants.

Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905 (Ontario Court of Appeal)

12The Court is bound to consider the framework set out in the Family Law Rules. While our Court of Appeal in C.A.M. v. D.M. 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 confirms a degree of discretion, “…It is apparent that the Family Law Rules have circumscribed the broad discretion…” which is granted to Judge’s under section 131(1) of the Courts of Justice Act.

13The Family Law Rules which are relevant to this matter are as follows:

Rule 2:

• Court is required to apply rules to promote the primary objective which is to deal with cases justly

• Parties and lawyers are required to help the Court promote this objective

Rule 18:

• The ramification of offers to settle made by a party

Rule 24:

• 24(1): The successful party is presumed entitled to costs.

• 24(2): The presumption of entitlement based on success may be rebutted if successful party acted unreasonably.

• 24(3): In deciding if a party acted unreasonably, Court considers:

• Behaviour in relation to issues from the time arose, including whether an offer to settle was made;

• Reasonableness of offer made;

• Any offer party withdrew or refused.

• 24(6): Costs may be apportioned in accordance with success.

• 24(8): Consequences of a party acting in bad faith.

• 24(11): In setting the amount of costs to be paid by the party who is found to be liable, the Court must consider:

• The importance, complexity or difficulty of the issues;

• The reasonableness or unreasonableness of party’s behaviour;

• The lawyers’ rates;

• The time properly spent on the case;

• Expenses properly paid or payable;

• Any other relevant matter.

14The Court must also be mindful of the parties’ relative ability to pay costs. As stated by the Ontario Court of Appeal in Harrington v. Harrington [2009] O.J. No. 827 at paragraph 8:

“We acknowledge that the Respondent’s offer to settle was much closer to the actual award than the Appellant’s. At the same time, we bear in mind other principles respecting the award of costs in family law matters such as ability to pay and the relative means of each party to bear his or her own costs.”

DISCUSSION

15The Court’s first task in deciding entitlement to costs is to compare what was claimed by each party during the hearing of the motions to the result as found in the Court’s decision. This is the fundamental measure of success for the issue of costs in family law litigation.

16It is also clear that entitlement may be apportioned between the litigants in accordance with their respective success.

17Success must also be seen as relative to the significance of the issue raised in the claim. If this is not to be a “simple mathematical or mechanical exercise” as expressed by the Ontario Court of Appeal, then there has to be some measure based on the importance of the issue decided by the Court.

18As noted by the Court in its February 20, 2015 ruling, these motions raised a number of issues all of which revolved around the Respondent mother’s access to the two children of the marriage.

19The Court notes that, much to their credit, both litigants were opened to “compromise” and “discussion” at the relatively brief hearing of February 25, 2015. In the end, the Court’s ruling reflected terms which were agreed upon, for the most part, by both litigants.

20The Court is left with the sense that these individuals are both acting in good faith and trying to rehabilitate the Respondent mother’s relationship to the children.

21The reality is that the concerns raised in these proceedings and which impact on the children are significant and long standing. At page 14 of her December 20, 2011 report the clinical investigator makes the following comments:

“Throughout their lives, Tristan and Mickaela have been exposed to significant adult conflict in the relationship between their mother and father. Promoting the emotional health of the children would necessitate several converging factors such as stability, security and consistency in meeting all spheres of their developmental needs. Children also need to experience agreement and favourable reception between their parents. While Mr. MacDonell is mistrustful of the sustained efforts of Ms MacDonell’s sobriety and emotional health, the children do need to continue to develop their relationship with their mother and this can only occur with a carefully constructed access regime that will assist the children to achieve their desire to have more contact with Ms MacDonell, as she continues to work on achieving success.”

22As expressed by the Court in its ruling on the merits of these motions, the clinical investigator’s intent was to set out a process which would lead to open and liberal access to the children; the nature and quality of the Respondent’s access was to evolve in accordance with her progress in addressing the underpinning issues; the measures leading to open and liberal access were identified as follows:

i) Counselling;

ii) The demonstration of successful sobriety over a minimum period of 6 months;

iii) The demonstration of sustained emotional health and sobriety.

23The Court’s belief was that, on balance, the evidence presented to the Court in these motions did not allow for a finding that the measures have been met, at this point, by the Respondent.

24In the end, the Court is of the view that the Respondent is being precipitous in her understable yearning to rehabilitate her relationship with the children.

25It would appear to the Court that the Applicant father’s wanting to proceed with care and caution is understandable when one considers the significance and long standing nature of the concerns raised in these proceedings.

26Seen in such light, the Court’s ruling is reflective of the Applicant’s proposed cautious approach to how to rehabilitate the Respondent’s relationship to the children. He is therefore seen as the successful party in these motions and as such presumptively entitled to a costs award.

27Specifically the Court has considered the following findings which are more favourable to the Applicant:

1. Supervised access;

2. OCL involvement;

3. The Respondent’s common-law spouse not to attend visits; the point is not that this individual is a risk to the children but he is a source of potential conflict between the adults which could in turn impact the children who have already been subjected to conflict for a good portion of their young lives;

4. Disclosure of letters from various mental health and medical experts who have provided and continue to provide care to the Respondent.

28The Court’s finding that the Applicant is entitled to costs is further reinforced by the fact that prior to the hearing of the motions, he presented an offer which was rejected by the Respondent. Having reviewed this offer, it would seem to the Court that it was, in essence, as favourable as the Court’s ruling.

29Finally, for the reasons already articulated, the Court is of the view that the Applicant did not act unreasonably so as to be deprived of costs.

30The next and final issue for the Court is the proper amount of this award.

31Having considered all of the circumstances in this matter and applying the relevant principles, the Court concludes that a costs award of $1,750.00, all inclusive, payable by the Respondent to the Applicant on or before December 31, 2015 is fair and reasonable. The Court has considered the following factors:

− The issues in these motions were not complex or difficult;

− The issues revolved around these young children’s best interests and were important;

− The Court’s sense is that both litigants are acting in good faith and are not seen as unreasonable;

− The Court is not questioning the reasonableness of the bill of costs filed by counsel for the Applicant;

− The Court is mindful of the Respondent’s limited ability to pay costs and the fact that she is paying child support.

CONCLUSION

32The Court orders that the Respondent mother pay the Applicant father costs for these motions in the amount of $1,750.00 all inclusive. This amount shall be paid on or before December 31, 2015.

Justice Ronald M. Laliberte Jr.

Released: April 30, 2015

CITATION: MacDonell v. MacDonell, 2015 ONSC 2856

COURT FILE NO.: 10-1401