Citation: Cinapri v. Fleck, 2016 ONSC 2058
COURT FILE NO.: FS-13-78129-00
DATE: 2016 03 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANGELA CINAPRI
Applicant
- and -
JAMES FLECK
Respondent
COUNSEL:
Jesse Rosenberg, for the Applicant
Gary S. Joseph and Meghann Melito, for the Respondent
HEARD: In Writing
ENDORSEMENT RE: COSTS
Justice M.G. Emery
[1] The respondent father, James Fleck, takes the position that he was more successful on his motion to enforce the terms of Justice Baltman’s final order than the applicant mother, Angela Cinapri. Mr. Fleck relies upon the presumption under Family Law Rule 24(1) that the successful party is entitled costs of the motion. He claims that his costs for the motion on a partial indemnity basis are calculated at $16,094.87, on a substantial indemnity basis in the amount of $21,050.71, and that these costs add up to $26,006.56 on a full recovery basis. Mr. Fleck therefore requests that he be awarded costs fixed in the amount of $16,000, inclusive of disbursements and HST for the motion.
[2] Mr. Fleck takes the alternative position that success on the motion was divided, and that no costs should be awarded to either party.
[3] Ms. Cinapri seeks her costs of the motion under Family Law Rule 24(1). Ms. Cinapri argues that she successfully opposed the motion in relative terms. She has attached a bill of costs showing that opposing the motion cost her $16,797.96 for legal fees, disbursements and HST. Ms. Cinapri seeks $13,000 for those costs on a partial indemnity basis, all-inclusive.
[4] Every costs order involves a consideration of entitlement, scale and quantum. Entitlement requires the court to determine the proper party to be awarded costs, leaving the other party to pay them. Scale refers to the level of costs to be paid, in order to reimburse the party awarded costs for legal fees and out of pocket expenses on a partial indemnity, substantial indemnity or full recovery basis. The quantum of those costs calls upon the court to set an actual amount for the costs one party is to pay the other.
[5] In a family law case, the court relies upon Family Law Rule 18 where there is an offer to settle, and Family Law Rule 24 with respect to all other aspects of making a costs award. Family Law Rule 24(1) provides a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. In order to determine which party was the successful party, it is often important to determine if a party achieved a result that meets or exceeds the terms of an offer to settle served in accordance with Family Law Rule 18.
[6] When setting the quantum of costs, the court is directed to consider the factors set out in Family Law Rule 24(11). When setting those costs, a judge is exercising his or her discretion given under Section 131 of the Courts of Justice Act to award the costs of, and incidental to, a proceeding or a step in that proceeding. This discretion is subject to the provisions of a statute or rules of court. As the Family Law Rules are rules of court applicable to family law proceedings, my discretion to award costs is guided by Family Law Rule 24(11) that mandates that I consider the following factors:
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. O. Reg. 114/99, r. 24 (11).
[7] Family Law Rule 24(11) also requires me to consider any other relevant matter. I speak of two other relevant matters here that are relevant to making this costs award.
[8] First, Fong v. Chan sets out the three fundamental purposes that the modern costs rules are designed to serve:
- To partially indemnify successful litigants for the cost of litigation;
- To encourage settlement; and
- To discourage and sanction inappropriate behaviour by litigants.
[9] The same three purposes for the modern costs rules have been recognized as applicable to family law proceedings in Serra v. Serra, (2009) ONCA 395.
[10] Second, it is a fundamental principle in the law of costs that the court should only grant what is a fair and reasonable amount for costs. A measure of what is fair and reasonable is generally considered to be what the unsuccessful party could reasonably expect to pay as those costs: Boucher v. Public Accountants Council for the Province of Ontario et al, 2004 CanLII 14579 (ON CA), [2004] 71 O.R. (3rd) 291.
[11] Mr. Fleck served offers to settle on December 10, 2015 and January 8, 2016 respectively. The second offer to settle modified the first and I therefore consider his settlement position to have been consolidated into one offer. This is confirmed by paragraph 5 of the second offer to settle, which states that all other terms and provisions of his offer to settle dated December 10, 2015 remain in full force and effect.
[12] When comparing the consolidated offer made by Mr. Fleck to the result achieved on motion, it is clear that Mr. Fleck was not as successful as the terms of his consolidated offer to settle.
[13] Ms. Cinapri also made offers to settle on December 9, 2015 and December 17, 2015 respectively. Those offers to settle, when read together, essentially amounted to an offer that Mr. Fleck’s motion be dismissed on the merits, and that he pay some costs towards her legal expense to date.
[14] It is clear from reading the offers to settle of Ms. Cinapri and comparing them to the result achieved that she was not as successful in opposing the motion as the terms of her offers to settle.
[15] Mr. Fleck argues that he achieved some success on the motion that entitles him to costs as the successful party under Family Law Rule 24(1). He achieved that success on obtaining the order that Ms. Cinapri provide a notarial copy of Julia’s health card forthwith and after her name change has been made, as well as an order that she provide proof within defined timelines that she has filed the application for Julia’s change of name. These orders were made to enforce paras. 27 and 34 of Justice Baltman’s final order.
[16] Ms. Cinapri argues that although seven terms of Justice Baltman’s order were contained in the notice of motion and Mr. Fleck only succeeded on enforcing two of those terms, she was put to the expense of opposing eleven terms because four of the terms Mr. Fleck was insisting upon enforcing were contained in his affidavit material. Ms. Cinapri argues that because Mr. Fleck has succeeded on only two of eleven heads of relief, she is substantially the successful party. If she is correct, this would have the effect of reducing Mr. Fleck’s success ratio, with Ms. Cinapri’s corresponding gain as the presumptively successful party.
[17] Subrule 14(9) specifies that a motion for temporary relief requires a notice of motion and an affidavit, and may be supported by additional evidence. The rule does not appear to require that the specific relief the moving party is seeking be described in the notice of motion. However, Rule 1(7) provides that where matters are not covered in the Family Law Rules adequately, the court may give directions and the practice shall be decided by analogy to, if the court considers it appropriate, the Rules of Civil Procedure. Rule 37.06 of the Rules of Civil Procedure provides as follows:
CONTENT OF NOTICE
37.06 Every notice of motion (Form 37A) shall,
a) state the precise relief sought;
(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and
(c) list the documentary evidence to be used at the hearing of the motion.
[18] I find by analogy to Rule 37.06 of the Rules of Civil Procedure that a notice of motion under the Family Law Rules should provide the precise relief requested. Doing so gives the opposing party and any interested party notice of the nature of the motion and the basis for making it. The notice of motion is the instrument authorized by the Family Law Rules for one party to seek temporary relief against another. It gives notice to the opposing party of the issues to address. It is also the instrument in which the moving party sets out the factual and legal grounds for the motion, and provides the statute, rule or other source of law that gives the court what power is necessary to grant the relief requested. If a moving party were permitted to sprinkle the relief requested throughout an affidavit filed in support of the motion, oblique references to orders requested and the prospect of ambiguity would offend the practice within our court system to clearly identify to the opposing party and to the court what the motion is about.
[19] I do not know of any provision under the Family Law Rules that requires the moving party to specify the precise relief that party seeks from the court in the notice of motion itself. The closest case to it is MacDonald v Isnor, 2005 CanLII 3469, where the court addressed an application to recognize an extra-provincial order. In that case, Justice J.W. Quinn held that an application should specify the relief requested by the applicant. In a footnote, Justice Quinn stated that his comments regarding an application should apply equally to a notice of motion.
[20] I agree. Although Justice Quinn’s footnote may be considered obiter dicta in MacDonald, it is my view that Family Law Rule 14(9) requires a party to set out the precise relief he or she is seeking in the notice of motion, as well as the grounds for seeking that relief. This requirement is consistent with the requirements for a notice of motion in a civil action under Rule 37.06.
[21] It is for these reasons that I only considered the seven terms expressly at issue in Mr. Fleck’s notice of motion to be the terms of Justice Baltman’s order before the court for enforcement purposes.
[22] Although Ms. Cinapri may have been successful on opposing an enforcement order with respect to only two of the terms made by Justice Baltman, the breach of any term in a court order is one breach too many. It must also be recognized that Mr. Fleck was not successful in obtaining enforcement orders with respect to paragraph 15 of Justice Baltman’s final order because of the language used by the parties themselves in the minutes of settlement. Therefore, I consider Mr. Fleck to have been the successful party. He is therefore entitled to costs under the presumption contained in Family Law Rule 24(1).
[23] I am also of the view that making a costs award against Ms. Cinapri for disregarding those terms would be a proportionate sanction under Family Law Rule 1(8)(a), as well as to satisfy the purposes for which costs are designed to serve. I am not prepared to reward Ms. Cinapri with a wholesale reprieve by awarding no costs under Family Rule 24(6) which recognizes that costs may be apportioned where success is divided. However, I am prepared to exercise my discretion to apportion costs for divided success on the motion under Family Law Rule 24(6) at this stage by reducing the costs Mr. Fleck would otherwise receive.
[24] I have considered all of the factors under Family Law Rule 24(11) to set the amount of costs, keeping in mind the principles embedded in Family Law Rule 24(6) to recognize Ms. Cinapri’s limited success and to arrive upon an amount for costs that is fair and reasonable under Boucher v. Public Accountants Council for the Province of Ontario. On applying those factors and principles, I award costs to Mr. Fleck by discounting his claim for partial indemnity costs of $16,000 by 60 percent to $6,400, all inclusive. These costs are payable by Ms. Cinapri within 60 days.
Justice M.G. Emery
Released: March 24, 2016
CITATION: Cinapri v. Fleck, 2016 ONSC 2058
COURT FILE NO.: FS-13-78129-00
DATE: 2016 03 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANGELA CINAPRI
Applicant
- and –
JAMES FLECK
Respondent
ENDORSEMENT RE: COSTS
Justice M.G. Emery
Released: March 24, 2016