ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: F-1745-13
DATE: 2015/12/21
BETWEEN:
Sheri-Ann Naranjit
Applicant
– and –
Mark Rocquemore
Respondent
Deborah Barfnecht, counsel for the Applicant
David Sherman, counsel for the Respondent
HEARD: April 15, 2015
THe Honourable madam justice Deborah L. Chappel
reasons ON COSTS
PART I: INTRODUCTION
[1] These are my Reasons for Judgment on the issue of costs in relation to a motion brought by the Respondent on September 18, 2015 and a cross motion brought by the Applicant on the same date. The issues in dispute related to the child of the parties’ relationship, Monique Rocquemore, born November 29, 2007 (“Monique”). The motions were brought to address the following issues:
The scheduling of this matter for trial;
The specifics of regular weekend access for the Respondent, who lives in Maryland, United States of America;
The location of the Respondent’s weekend access;
The place of exchange of the child for access visits;
The frequency of Skype contact between the Respondent and the child;
The need for consent for travel with the child outside of Canada;
The right of the Respondent to obtain an American passport for the child;
Whether the parties should be required to submit new Intake forms to the Office of the Children’s Lawyer for the purposes of that office determining whether an updated Office of the Children’s Lawyer report should be provided;
Whether certain conditions that currently apply to the Respondent’s access should continue; and
Whether the Respondent’s child support obligation should be increased retroactively effective January 1, 2015, and if so, the appropriate quantum of ongoing child support.
[2] At the conclusion of the hearing of the motions, I invited the parties to file written submissions, Bills of Costs, Offers to Settle and Books of Authorities on the issue of costs. Both parties filed written submissions requesting costs. For the reasons that follow, I am ordering that there shall be no costs payable in connection with the motions.
PART II: THE LAW
[3] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act[^1], which provides that subject to the provisions of any Act or rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. Rule 24 of the Family Law Rules[^2] sets out a number of principles to guide the court in the exercise of its discretion.
[4] The Ontario Court of Appeal established in Serra v. Serra[^3] that modern rules respecting costs have the goal of fostering the following three fundamental purposes:
to partially indemnify successful litigants for the cost of litigation;
to encourage settlement; and
to discourage and sanction inappropriate behaviour by litigants.
[5] In determining how these objectives can be most appropriately achieved, the court must balance the goal of indemnifying the successful litigant for their costs with the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome cost consequences.[^4]
[6] The Court of Appeal has highlighted the discretionary nature of costs awards, and the importance of the court considering all relevant factors.[^5] It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion.[^6]
B. Liability for Costs
[7] As noted above, Rule 24 of the Family Law Rules sets out additional principles and guidelines that apply in determining costs in Family Law proceedings. The Rule sets out a number of factors relevant to the preliminary issue of liability for costs. Rule 24(10) establishes the general principle that the court should determine the issue of costs promptly after each step in the case. If a specific order for costs is not made at the end of a step in the case, including a conference or motion, or costs are not reserved, a judge dealing with a subsequent step or the trial judge should not generally consider the costs associated with that step when determining costs.[^7]
[8] Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. This presumption set out in Rule 24(1) does not apply where the successful party has acted unreasonably, in which case that party may be deprived of all or part of their costs or may be ordered to pay the unsuccessful party’s costs.[^8] It is not any type of unreasonable conduct that will disentitle a successful party to costs. However, the misconduct need not meet the high threshold of bad faith within the meaning of Rule 24(8) for the court to exercise its discretion pursuant to Rule 24(4) to deny costs despite a party’s success. A pattern of conduct which shows lack of respect for the letter and spirit of court orders and the relationship between a parent and child is the type of behaviour which should cause the court to seriously question the appropriateness of a costs award in favour of the successful party in a Family Law proceeding involving the child.[^9]
[9] Where success in a step in a case is divided, the court may exercise its discretion to order no costs, or to apportion costs as appropriate.[^10] The court may also in those circumstances award costs to the party who was more successful on an overall global basis.[^11] Similarly, if the parties have reached a negotiated resolution of the issues in their case, costs can nonetheless be ordered if the court determines that one party was more successful overall than the other party.[^12]
[10] Rule 24(7) stipulates that the absence of a party at a step in the case, or inadequate preparation to deal with the issues, create a presumption that costs should be ordered against the offending party. In these circumstances, the court may decide not to order costs if it is in the interests of justice that no costs be awarded. A finding that a party has acted in bad faith also results in liability for costs as against the offending party. Rule 24(8) provides that 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. This costs provision is subject to the general principle that costs claimed must be reasonable.
[11] Another important consideration in determining both entitlement to and the quantum of costs is whether or not any party has served an Offer to Settle.[^13] Rule 18(14) establishes costs consequences for failing to accept an Offer to Settle that complies with the requirements of that Rule. In deciding costs, the court may also take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply.[^14] A party’s failure to serve an Offer to Settle may also be viewed as an adverse factor in determining the issue of costs.[^15]
[12] The circumstances discussed above are not the only ones which will give rise to liability for costs. Liability for costs must be assessed taking into consideration all of the circumstances and dynamics of the case. In deciding this issue, the overall reasonableness of each party’s conduct and the positions which they have taken in the litigation is an important consideration.
B. Quantum of Costs
[13] Once liability for costs has been established, the court must determine the appropriate quantum of costs. In Serra v. Serra,[^16] Boucher v. Public Accountants Council (Ontario),[^17] and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC,[^18] the court set out the additional general principles relating to the quantum issue:
Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.
Costs need to be proportional to the issues and amounts in question and the outcome of the case.
Amounts actually incurred by the successful litigant are not determinative.
In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.[^19]
[14] In Boucher, the court emphasized that a failure to follow the overriding principle of reasonableness in assessing costs can produce a result that is contrary to the fundamental objective of access to justice.
[15] Rule 24(11) prescribes some of the factors which the court should consider in deciding the appropriate quantum of costs. These factors include the following:
FACTORS IN COSTS
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.
[16] In considering the issue of costs, the court should consider Rule 24 in conjunction with Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly.[^20] The court should also turn its mind to Rule 1(8), which provides that the court may respond to a failure to follow the Rules or abide by an order by making an order for costs.
[17] Where the court concludes that a party has acted in bad faith, Rule 24(8) directs the court to order costs against that party on a full recovery basis, payable immediately. This costs provision is subject to the general principle that costs claimed must be reasonable.
[18] Although not specified in Rule 24(11) as factors in determining costs, the financial means of the parties, their ability to pay a costs order and the effect of any costs ruling on the parties are also relevant considerations in reaching a determination on the issue of costs, both under Rule 24 and Rule 18(14).[^21] However, ability to pay is only relevant to the issue of quantum of costs and how payment should be effected, and not to the question of liability for costs.[^22] Furthermore, a litigant’s limited financial means will be given less weight in the costs analysis than the court’s determination regarding overall success in the litigation.[^23] Furthermore, ability to pay alone cannot override the other factors set out in Rule 24(11).[^24] A party’s limited financial means will also be accorded less weight if the court finds that the party acted unreasonably. As Curtis, J. stated in Mooney v. Fast, “[i]t must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court.”[^25]
[19] Finally, in cases involving custody and access claims, a more tempered approach to costs may be appropriate depending on the circumstances of the case. The rationale for this is that parties should not be discouraged from advancing bona fide custody or access claims that are meritorious out of fear of possible deleterious financial consequences.[^26]
PART III: ANALYSIS
[20] Upon carefully considering all of the fundamental principles outlined above regarding costs, I have concluded that there should be no order for costs in relation to the motions. The most significant factor which has guided my decision on the costs issue is my assessment of the overall success of the parties on the motions. Both parties submit that they were the most successful party overall. In my view, success was completely divided on both the major issues and the less urgent matters. I turn to my conclusions regarding the success of the parties on each issue. I focus first on the Respondent’s successes, as he was the original moving party, and then address the Applicant’s successes. I then outline the areas in which I have concluded that the outcome was neutral in terms of overall success.
[21] One of the most important issues which the Respondent sought to address in his motion was the need to move this matter to trial. The Applicant opposed this request. It was her position that an updated Office of the Children’s Lawyer (“OCL”) report should be pursued, and that the trial should only be scheduled after the OCL determined whether it would provide an update. I agreed with the Respondent that there has been inordinate delay in moving this matter forward, and that it was in Monique’s best interests that a trial date be scheduled as soon as possible to resolve the custody and access issues. The Respondent was therefore successful on this issue.
[22] Another major issue on the motions was whether the Respondent’s weekend access should occur in the Hamilton area only, or whether he should be permitted to exercise his access in Buffalo at a residence owned by a paternal aunt. The Applicant strenuously argued that weekend access should only occur in the Hamilton area. I disagreed. My order did not place any geographical restrictions on the Respondent’s weekend access. However, I ordered that the Respondent was to advise the Applicant four days in advance as to where access would be occurring. The Respondent was the successful party on this hotly contested issue.
[23] The Respondent sought an order that he share the child’s Christmas break period equally with the Applicant. The Applicant ultimately conceded to this request, but there is no evidence that she did so prior to the motion being brought. The Respondent was successful in obtaining this relief.
[24] The Applicant requested an order permitting her to travel both within and outside of North America without the Respondent’s consent. The Respondent’s position was that the consent of both parties should be required to travel with Monique outside of North America. I declined to grant the relief which the Applicant sought, and concluded that the issue of consents for international travel was not one that needed to be addressed until trial. However, in order to facilitate the Respondent’s access with Monique in the United States, I made an order permitting both parties to travel with the child to the United States without the consent of the other party. Overall, the Respondent was very much the successful party on these issues.
[25] Turning to the areas in which the Applicant was clearly the successful party on the motions, her most significant success was in maintaining the current location of access exchanges. The Respondent requested that access exchanges occur in Buffalo, New York. As I elaborated upon in my Reasons, this issue was extremely important to both parties given the inconvenience which the geographical distance between them creates for access purposes. This issue took up a significant amount of time at the hearing, and the Applicant’s position prevailed.
[26] The Applicant was successful in setting a set time for regular monthly overnight visits. I ordered that these visits occur on the third Saturday of every month, until Sunday at 4:00 p.m. The motion was absolutely necessary to address this issue. The Respondent had not had access for an extended period of time due to the parties’ inability to negotiate appropriate times. He was nonetheless resistant to an order fixing the time for visits due to concerns about scheduling conflicts. The Respondent eventually agreed to fix the access for the third Saturday of every month after discussions occurred about how scheduling conflicts could be resolved. The order that I made included terms to manage such conflicts and provided a framework for rescheduling visits in the event of scheduling difficulties. Overall, the Applicant was the successful party on this issue.
[27] One of the most important issues for the Applicant on these motions was the question of whether the parties should be required to submit new Intake Forms to the Office of the Children’s Lawyer so as to comply with the January 15, 2015 order requesting that the Office of the Children’s Lawyer update this matter. The Respondent was resistant to submitting a new Intake Form and following through with the request for an updated report, since he felt that the parties had made significant progress in resolving the issues and that an updated report would not significantly assist the court. I noted that the January 15, 2015 had not been appealed, and that in the absence of consent to the contrary, the parties must comply with the order. The Applicant was the successful party on this issue.
[28] The Respondent requested daily skype contact with the child. The temporary order dated February 25, 2014 provided for skype contact twice per week, to be arranged by the parties on at least 4 days’ notice. The Applicant opposed the request for daily skype contact. I agreed with the Applicant that daily skype contact was not appropriate for various reasons, and ordered that skype communications occur at least three times per week. I also set specific times for skype contact to occur, and included provisions allowing for make-up calls and how they are to be arranged. Overall, the Applicant was the more successful party on this issue.
[29] With respect to the other issues that were raised and addressed on the motions, I conclude that success was divided between the parties. I turn now to each of those issues. First, the Respondent’s motion included a request for overnight weekend access pending trial. Overnight access had occurred on several occasions in 2015, including an extended access visit in Maryland in July 2015. The Respondent alleged that the Applicant resisted further overnight access after the extended summer visit. However, the Applicant alleged that she had offered a number of overnight visits, but that the parties could not agree on dates or the location of visits and access exchanges. As a result of the evidence adduced on the motions, the parties were able to reach an agreement regarding regular overnight weekend access once a month. Given the parties’ very different perspectives on the reasons for the lack of access after July 2015, the outcome on this issue was neutral in terms of overall success.
[30] Issues regarding holiday access were raised in the motions before me. The parties were able to resolve those issues prior to the commencement of the hearing, with the exception of the location of access exchanges which I have already addressed. The outcome of those issues was therefore in my view also neutral in terms of overall success.
[31] The Applicant sought an order providing for the various terms relating to the Respondent’s access as set out in the orders of Pazaratz, J. dated February 25, 2014 and January 15, 2015 to continue pending trial. I concluded that this request was unnecessary, as the Respondent did not request that any of those terms be varied. With respect to the Respondent’s request that his November weekend visit be scheduled so as to coincide with the child’s birthday, that issue was resolved when I fixed the weekend access to occur on the third Saturday of every month. The Applicant’s position on this issue prevailed by virtue of that determination and not on the merits of the timing of a birthday visit per se. Accordingly, I do not view this as a distinct area of success for the Applicant.
[32] Finally, I conclude that there was divided success on the child support issue. The Applicant requested that child support be increased based on an increase in the Respondent’s income since the order of February 25, 2014 was made. She also requested that the Respondent’s income for child support purposes be grossed up to reflect the appropriate American/Canadian dollar exchange rate. I agree with counsel for the Respondent that the Applicant did not adduce the necessary evidence respecting the Respondent’s income or the appropriate exchange rate in order to properly address the child support issue. Nonetheless, the Respondent acknowledged that his income is $62,800.00 American, and agreed to pay the increased Table amount of child support based on that figure. While the Applicant was successful in negotiating an increase in the Table amount, she did not succeed on the issue of grossing up the Respondent’s income due to lack of evidence on this issue. In addition, the question arose as to whether the full Table amount would be appropriate in any event given the Respondent’s high travel expenses for the purpose of exercising access.
[33] In deciding the issue of costs, I have considered the overall conduct of the parties and the reasonableness of the positions which they took on the motions. While they were able to resolve a number of issues prior to the hearing of the motions, they should have in my view been able to resolve all of the issues without the expense and delay that these motions entailed. The evidence before me on the motions indicated that both parties were responsible for the difficulties in scheduling access after July 2015. In my view, the Applicant was unreasonable in insisting that the Respondent’s weekend access occur only in the Hamilton and surrounding area. On the other hand, the Respondent’s request that the Applicant transport the child to Buffalo for weekend visits was also unreasonable. The process of obtaining an update from the Office of the Children’s Lawyer should have begun without the necessity of a motion to address the issue given that an order had previously been made for this to occur. On the other hand, the Applicant sought to address issues on her motion that I concluded were more appropriate to address at trial on a final basis. The unreasonableness of both parties resulted in considerable expense and delay in resolving important issues relating to Monique’s happiness and well-being.
[34] Finally, my order dated October 22, 2015 required the parties to include with their costs submissions copies of any Offers to Settle that were exchanged. Neither party filed Offers to Settle. The lack of Offers to Settle is another factor that I have considered in declining to order costs in favour of either party.
[35] For the foregoing reasons, there shall be no costs payable by either party in connection with the motions.
The Honourable Madam Justice Deborah L. Chappel
Released: December 21, 2015
COURT FILE NO.: F-1745-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHERI-ANN NARANJIT
Applicants
-and –
MARK ROCQUEMORE
Respondents
REASONS FOR JUDGMENT
The Honourable Madam Justice Deborah L. Chappel
Released: December 21, 2015
[^1]: Courts of Justice Act, R.S.O. 1990, c. C-43, as amended.
[^2]: Family Law Rules, O. Reg. 114/99, as amended.
[^3]: Serra v. Serra, [2009] O.J. No. 1905, 2009 ONCA 395.
[^4]: Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.).
[^5]: Andrews v. Andrews, 1980 3619 (ON CA).
[^6]: M. (C.A.) v. M. (D.), 2003 18880 (ON CA).
[^7]: Gammon v. Gammon, 2008 54968 (ON SC).
[^8]: Rule 24(4).
[^9]: Horne v. Crowder, 2015 ONSC 1041 (S.C.J).
[^10]: Rule 24(6).
[^11]: Boland v. Boland, 2012 ONCJ 239.
[^12]: Johanns v. Fulford, [2011] O.J. No. 4071 (S.C.J.).
[^13]: Osmar v. Osmar, 2000 20380 (ON SC).
[^14]: Rule 18(16).
[^15]: M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510 (O.C.J.).
[^16]: Serra v. Serra, Supra.
[^17]: Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA).
[^18]: Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 1042 (ON CA).
[^19]: See also Delellis v. Delellis, 2005 36447 (ON SC); Hackett v. Leung, 2005 42254 (ON SC).
[^20]: Mooney v. Fast, Supra.
[^21]: Tauber v. Tauber, 2000 5747 (ON CA).
[^22]: Izyuk v. Bilousov, 2011 ONSC 7476.
[^23]: Biant v. Sagoo, Supra.
[^24]: Peers v. Poupore, 2008 ONCJ 615.
[^25]: Mooney v. Fast, 2013 CarswellOnt 15659 (O.C.J.).
[^26]: Weaver v. Tate, 1989 CarswellOnt 330 (H.C.).