Spironello v. Spironello, 2015 ONSC 3439
COURT FILE NO.: 2947/13
DATE: 2015-06-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELISSA LEE SPIRONELLO
Applicant
– and –
DANIEL ANTHONY SPIRONELLO
Respondent
M. O’Neill, Counsel for the Applicant
J.P. Paciocco, Counsel for the Respondent
HEARD: Written Submissions
varpio, j.
COSTS RULING
[1] I have had the opportunity to review the costs submissions provided by the parties. The father seeks $23,348.62 in costs given his success on the access and s.30 Assessment motions while the mother effectively states:
The quantum sought by the father is too high; and
She is due an offset of $8,686.31 for success in her attempt to procure the assistance of the Office of the Children’s Lawyer.
ANALYSIS
[2] Rule 24 of the Family Law Rules governs the imposition of costs in this matter:
RULE 24: COSTS
SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
DECISION ON REASONABLENESS
(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.
DIVIDED SUCCESS
(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
FACTORS IN 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.
[3] Firstly, I accept that the father was largely successful in the motion and is entitled to costs. The crux of the motion had to do with overnight access and a s. 30 Assessment. Although the mother was willing to “work up” to overnight access after a period of time, the father’s motion for immediate overnight access was successful.
[4] The father achieved a level of success on the motion that bested the offer sent to the mother on February 20, 2015. Nonetheless, it should be noted that the Offer to Settle was an “all or nothing” offer whereby the father’s proposed settlement was “An interim order [which] shall issue in accordance with the terms of the Parenting and Access Interim Plan as attached as Schedule A to the Notice of Motion”. Simply put, the father’s offer called for nothing less than abject capitulation. While the father is correct that besting an offer to settle - irrespective of the nature of the offer – opens the door to elevated costs, automatically awarding elevated costs in such a circumstance would simply do an “end run” around the costs regime. A party could defeat the presumption in favour of partial indemnity simply by providing an offer to settle to the opposing party that replicated the relief sought. Every successful motion would thus attract elevated costs. As such, I will not order substantial indemnity costs in these circumstances without further grounds for such an award. As will be noted below, however, other factors exist in this case to warrant some imposition of elevated costs.
[5] I note from the correspondence attached to the mother’s costs argument that the mother has always wanted to work with counsellors and other professionals to satisfy herself that the father was capable of parenting by himself. Nevertheless, I also note that the mother persisted in seeking graduated access for the father despite the opinions of ostensibly independent third parties to the contrary. At paragraph 25 of my previous endorsement, I wrote:
I accept that the mother may have heightened concerns for her children that were driven by the father’s past behaviour. However, the father has provided affidavit evidence that contradicts much of the mother’s evidence. Further, independent, knowledgeable third parties have stated (either tacitly or overtly) that the father is capable of looking after the children. There is no objective and/or professional evidence to suggest that the father is incapable of exercising overnight access. Although the parties may differ with respect to the father’s parenting abilities, the professional consensus is clear: the father is not an inadequate parent.
[6] In the face of such a consensus, the mother ought not to have withheld overnight access to the father pending the findings of a s.30 Assessment or the findings of the Office of the Children’s Lawyer. As I indicated, the professional evidence was clear and the mother chose not to accept what should have been obvious: the father was going to get interim overnight access. The mother’s strident position (whether or not it was heartfelt and genuinely held, which may be the case) affects the imposition of costs as per Rule 24(11)(b).
[7] The father was also successful on the mother’s motion for a s.30 Assessment. This factor also augers in favour of father. Nonetheless, the respondent father opposed (in his materials, at least) a request for assistance from the Office of the Children’s Lawyer. Although this latter point was not particularly contentious in the litigation, I cannot say that the position as adopted in the materials was reasonable as per Rule 24(11)(b). The high conflict nature of the dispute necessitated as much independent third party information as reasonably possible. As such, the mother is entitled to some limited set-off for partial success although $8,686.31 is too high for any such set-off since the vast majority of the materials and argument dealt with the overnight access and the s.30 Assessment.
[8] A review of the Bill of Costs submitted indicates that the father’s request for $23,348.62 in costs is high. The mother’s calculations suggest that the father’s lawyers spent approximately 76.5 hours in preparation for the motion, which was argued in less than a day. While the matters were, as I indicated, somewhat complex and of undoubted importance, 76.5 hours of preparation (or any number close thereto) appears to be excessive for a motion that was heard in a limited timeframe.
[9] As a result of the foregoing, the father would normally be entitled to $12,500 in costs (all inclusive). This number reflects the complexity and importance of the matter, the fees charged by the respective lawyers, the reasonableness of the positions taken by the parties and the reasonableness of the offers submitted. Given the mother’s success on the OCL motion, I am willing to reduce that number to $11,000 (all inclusive). This quantum is payable within 60 days of the release of these reasons.
Varpio, J.
Released: June 2, 2015
CITATION: CITATION: Spironello v. Spironello, 2015 ONSC 3439
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELISSA LEE SPIRONELLO
- and -
DANIEL ANTHONY SPIRONELLO
COSTS RULING
Varpio J.
Released: June 2, 2015