BELLEVILLE COURT FILE NO.: FS-13-0402

DATE: 20151211

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alicia Dawn Meens, Applicant

AND

Jason John Meens, Respondent

BEFORE: Madam Justice Cheryl Robertson

COUNSEL: Cheryl R. Lean, for the Applicant

Peter Robertson, for the Respondent

HEARD: In Chambers (Written Submissions)

COSTS ENDORSEMENT

ROBERTSON J.

[1] The issue for determination is the liability and quantum of costs payable after a trial which focused on custody/residence and access issues of a young child. Most of the financial issues settled by partial minutes of settlement. The incomes of both parties required determination.

[2] The father was successful at trial on the custody/access/residence issues. Those issues took the majority of trial time. The father’s offers largely exceeded the results. The father’s income was determined at trial to be less than his offer. He offered to impute his income at $85,000. At trial, his income was determined to be $75,000. The mother’s income favored her position but I found at trial she had no realistic plan for employment and had not made genuine efforts to even look for employment. This finding tempers the result.

[3] There is no challenge to the rates or experience of either lawyer. Two experienced lawyers conducted the trial reasonably efficiently with civility. I find the bill of costs submitted by father’s counsel to be reasonable both in time spent and lawyer’s rates. Both parties made some efforts to settle. The mother’s choice to relocate the child to a new community was not reasonable given the facts as I found them. The mother resisted reasonable proposals.

[4] The parties were not wealthy and the family business was modest. The father was required to retain an expert on the business valuation issue. This was a significant expense. The expert’s evidence was not challenged at trial.

[5] There were no complex or new legal issues. The parties mostly disagreed about relocation of the child. The protection issue could have resolved if the residency and time sharing had settled.

[6] I have received and reviewed both parties’ written costs submissions. The father’s total costs were $51,492.25. He seeks an order for costs in his favor of $32,059.59 after adjustments. In short, he calculates this amount as 75% of his adjusted account after deducting various sums not claimable.

[7] The mother concedes the father was successful. She spent $36,078.81 in legal expenses. Her submissions review the accounts, law and facts. She concludes that the court must step back and examine the overall award with a view to determining whether it is fair and reasonable and whether the costs order is in line with the principle of proportionality. Her calculations suggest an amount of $12,464.24 following the approach set out in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.). She disputes some clerical time spent by the Respondent’s counsel. Arguably, it was at a cheaper rate than his. His account is a bit vague as to whether it was secretarial work or proper law clerk work. I have discounted it anyway.

[8] The parties agree substantially with the law on costs. The quantum of a cost award is discretionary. The Ontario Court of Appeal in Serra v. Serra confirmed that modern costs rules are designed to foster three fundamental purposes; namely, to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behavior by litigants bearing in mind that the awards should reflect what the court views as a fair and reasonable amount to be paid by the unsuccessful party.

[9] The court in Van Rassel v. Van Rassel, 2008 56939 (ON SC), 61 R.F.L. (6th) 364 (Ont. Sup. Ct.) provides a useful overview of the relevant factors in determining entitlement to costs. They include:

1. The result and who was successful;

2. Offers to settle;

3. Conduct of the parties;

4. Reasonableness of costs claimed; and

5. Financial means of unsuccessful party including the issue of the impact on the child to the paying party of a larger costs’ order.

[10] In determining costs, I considered the factors set out in FLR 24 (11) which reads as follows:

24 (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] I also considered Subrule 24(5) which provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(11)(b) above). The parties present as likable and nice people. That is not a factor. Costs are a business risk of litigation.

Costs in the Cause Order

[12] The father’s claim for costs includes the costs of an interim relief motion in December 2013. By temporary minutes of settlement, the parties consented to an interim order for shared custody with a three day /four day split in favor of the mother. The motions judge endorsed: “on consent, costs in the cause.”

[13] The mother argues the “costs in the cause” endorsement conflicts with Rule 24(10) which states the judge “promptly after each step in the case SHALL decide in a summary manner who if anyone is entitled to costs and set the amount of costs. She contends only that person who dealt with that step in the proceeding has authority to set the costs. Put simply, she argues costs in the cause are a lost cause when interpreted with Rule 24(10).

[14] I disagree. The excerpt of the transcript regarding the costs submissions from that December 4, 2013 appearance show the judge did address costs. The parties were present in the courtroom during discussion about the meaning of the “costs in the cause” endorsement. The mother was represented by different counsel at that time. Essentially, the parties by counsel agreed to save the costs until the end of the case. They agreed to bank them for a final determination.

[15] Surely she is not now suggesting she was doing so as a way to get out of any responsibility or trick the court. In looking at the bill of costs, it is a small portion in the total amount of both bills.

[16] Initially, the mother’s case seemed motivated by her belief that the child was at risk of harm by a relative. Layered on this concern was her choice to relocate which stood in the way of many options for settlement once the child reached school age. The court often faces tension in early proceedings between the goals of promoting settlement and diffusing tensions with the need to assess responsibility. In all of the circumstances, in particular because the investigations were still unfolding and the parties specifically agreed to defer costs of that appearance, I am addressing the issue squarely.

[17] Rule 2 states the primary objective of the rules is to enable the court to deal with cases justly. That includes dealing with cases in ways appropriate to its importance and complexity, saving expense and ensuring the procedure is fair to all parties. The parties consented to adjourn the costs issue. The judge agreed.

[18] As stated in my decision when considering the issue of status quo:

The Dec. 2013 order states it is without prejudice and reviewable. I give the status quo argument little weight here due to the court’s resistance to making an order for something unpredictable during a sex abuse investigation. It was unlikely the court would have sent the child to the father in the midst of the allegations. Status quo is not a presumption in law at a trial. There is no truth in the old saying: possession is 9/10 of the law. Mr. Meens signed minutes of settlement for a temporary arrangement as a realist. He did not acquiesce to some notion of a permanent residential change.

[19] In my view, the investigation, though upsetting, was required. The mother’s choice to relocate was not required and in looking at reasonable conduct and weighing competing plans, I dealt with that issue in my judgment.

[20] In all of the circumstances and the costs factors pursuant to the rules, I would order only very modest costs on the motion dealing with the temporary reviewable consent. I fix the costs of that motion at $500, included in the global assessment here.

[21] For purposes of appeal, in exercising my discretion, I have specifically considered Islam v. Rahman, 2007 ONCA 622, [2007] O.J. No. 3416. The court in that case held that a trial judge erred in failing to exclude from a costs award those amounts claimed for steps taken in the case where no order was made as to costs or where there was silence on the issue. Family Law Rule 24(10) provides that the judge who deals with a step in a case shall decide who, if anyone, is entitled to costs. If a party who has served an offer to settle the case as a whole wishes that fact to be taken into consideration in relation to a particular step, it is incumbent on that party to raise that issue with the judge who deals with that step. In Islam, various steps were taken (e.g. motions, conferences) in relation to which either there was an endorsement that there be no order as to costs or the issue of costs was not addressed. In the absence of a specific order for costs in favour of the party seeking the costs of a trial, the appellate court decided the trial judge should have disallowed costs claimed by the party in relation to such steps.

[22] Here, on the consent of both parties, the motions judge addressed the issue and deferred it to a later time. That time is now. If I am incorrect, then I rely on Rule 24 (11f) which authorizes a judge to consider “any other relevant matter”.

[23] It would be unfair, unreasonable and unjust to now say he lacked jurisdiction.

Any other relevant matter

[24] The mother asks for consideration of her limited ability to fund a cost award. I agree this can be considered as any other relevant circumstance. In Murray, 2005 46626 (ON C.A.), the court found that a costs award would have a devastating effect on the mother and it would likely destroy whatever chance she may have to achieve financial self-sufficiency so no costs were ordered. That case was followed in Chouinard, 2009 64817 (ON S.C.).

[25] Neither parent in the present case has the financial ability to pay for expensive litigation. Either parent paying their legal expenses might impact the child. Between them, they spent $80,000. I have taken into account the submission of the mother regarding her obligation to pay child support, and her proportionality argument in relation to the outcome. The law provides for consideration of the financial consequences of a costs award as a relevant factor but it is not a shield. For example, in Spears v. Spears, 2010 ONSC 4882, the court made a sizeable costs order against a mother on social assistance.

[26] The father is the main income source for the family. He has limited resources to bear the brunt of the litigation cost. Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 Carswell Ont 3317, 2004 ONCJ 141.

[27] Taking into consideration the written submissions of the parties regarding costs, the offers to settle, father’s success on the main issues at trial which took up most of the trial time, the mother’s success on her income, provisions of Rules 18 and 24 of the Family Law Rules as outlined above, the costs in the cause, the case law, the financial reality of the parties, the outcome and proportionality, and in the exercise of my discretion, I fix Mr. Meens’ costs in the sum of $26,000.00, inclusive, fees, disbursements, the December 2013 motion and HST.

Order

[28] Order to go that Ms. Meens shall pay costs to Mr. Meens fixed in the sum of $26,000.00 inclusive of HST and disbursements.

Madam Justice Cheryl Robertson

Date: December 11, 2015

BELLEVILLE COURT FILE NO.: 752/11

DATE: 20151211

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alicia Dawn Meens

Applicant

– and –

Jason John Meens

Respondent

BEFORE: Madam Justice Cheryl Robertson

COUNSEL: Cheryl R. Lean, for the Applicant

Peter Robertson, for the Respondent

COSTS ENDORSEMENT

Madam Justice Cheryl Robertson

Released: December 11, 2015