COURT FILE NO.: FC-13-2811 DATE: 2016/05/06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.S.G. AND E.M.G.

BEFORE: Justice A. Doyle

COUNSEL: Karla Policelli, Counsel for the Applicant Tanya Parker Wallace, Counsel for the Respondent

HEARD: March 15, 2016

COSTS ENDORSEMENT

[1] On April 1, 2016, the Court dismissed the Applicant father’s motion for summary judgment and a change in the parenting arrangements. The Court ordered the father to pay the set off amount of child support of $809 per month to the Respondent mother.

[2] If counsel were unable to agree on costs, they were to provide written submissions. The Court has now reviewed the parties’ respective submissions, offers to settle and bills of costs.

[3] The Court finds that the mother has been the successful party on the major issues before the Court. For reasons set out below, the Court awards costs in the amount of $4,000 to the mother.

Positions of the Parties

[4] The mother argues that she was the successful party and claims costs on a substantial indemnity basis in the amount of $9,500. The full amount of the bill of costs was $10,122.78.

[5] The father argues that despite the dismissal of his motion, he acted reasonably in relying on Dr. Smyth’s recommendations that Vimy reside with him. He submits that each party should bear their own costs or, alternatively, the mother should be awarded $2,000 in costs. He also submits that the mother will not benefit from an award of costs as she is in receipt of legal aid.

Legal Principles

[6] As set out in Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, modern costs awards are designed to foster three fundamental purposes:

• to partially indemnify successful litigants of the cost of litigation;
• to encourage settlement; and
• to discourage and sanction inappropriate behaviour by litigants.

[7] It has been observed that costs awards should reflect “what the Court views as a fair and reasonable amount that should be paid by the unsuccessful parties”. See Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291 (C.A.), at para. 24, citing Zesta Engineering Ltd. V. Cloutier, (2002), 21 C.C.E.L. (3d) 161.

[8] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 [Rules], creates a presumption of costs in favour of the successful party. Moreover, Rule 24(11) of the Rules sets out the factors that a Court shall consider in determining costs:

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.

[9] Rule 18 of the Rules deals with offers to settle and the cost consequences of failing to accept an offer to settle, and gives the Court discretion to take into account any written offer to settle, the date it was made and its terms in fixing costs.

[10] Sub-rule 18(14) of the Rules reads as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER (14) A party who makes an offer is, unless the Court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[11] Sub-rule 18(15) states the following:

COSTS CONSEQUENCES – BURDEN OF PROOF (15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of sub-rule (14).

[12] Even if sub-rule 18(14) does not apply, pursuant to sub-rule 18(16) the Court still has the discretion to consider any written offer to settle, the date it was made and its terms.

Success

[13] The mother’s offer to settle dated March 7, 2016 (served eight days before the motion) offered to settle the matter as follows:

i) The parties would continue to share joint custody and share time with Vimy equally on a week-about basis. ii) The mother would accept $699 per month as child support. iii) The mother would use her best efforts to attend an addictions assessment and follow recommendations and engage with a counsellor.

[14] In the mother’s March 7 offer she did not offer to pay for half of Dr. Smyth’s report nor was there mention of who would fund Vimy’s activities.

[15] In contrast, the father’s offer dated March 10, 2016, offered the following:

i) The father would have sole custody and Vimy would live primarily with him. ii) The mother would have access every second weekend and one evening per week. iii) No child support would be paid, but s. 7 expenses would be shared in proportion to their respective incomes. iv) The mother would not need to contribute to Dr. Smyth’s assessment.

[16] Clearly, the mother was successful on the major issues, i.e. joint custody and parenting arrangements. She also obtained more child support than she had offered.

[17] However, she was not successful on all the issues, as is required to bring the offer within the ambit of sub-rule 18(14), which permits costs on a full recovery basis.

[18] The father was successful in his motion to require the mother to reimburse him for half of the costs of Dr. Smyth’s report.

[19] With respect to the issue that the mother is on legal aid, the Court is governed by s. 46(1) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26, which states that:

The costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services.

[20] As set out in Ramcharitar v. Ramcharitar, (2002), 62 O.R. (3d) 107 (S.C.), the Court must treat the legally aided client the same as a client who is paying for his/her services. At para. 25, the Court found:

[T]he party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rates would be accordingly reduced.

Quantum

[21] In determining quantum, the Court considers the factors set out in sub-rule 24(11). The Court finds:

• The matters were of importance to the parties as they dealt with the custody and parenting of their only child, Vimy. The majority of the pleadings and submissions were spent on these important issues which predominated the time at the motion. Much time and effort were spent by the parties on the question of what is in Vimy’s best interests.
• The Court does not find that the father acted unreasonably. He believed he was justified in asking the Court to accept the recommendations of Dr. Smyth.
• The Court found that the father was not entitled to summary judgment as there was no finding that the mother accepted the offer that he had sent in his letter.
• Regarding a change of the parenting arrangements, the Court found that there was no material change of circumstances requiring a change since the previous Court order, which ordered that Vimy to reside equally with both parents.
• The Court did not make a finding that the father withheld child support unreasonably.

[22] The mother’s counsel’s rate of $250 per hour for a lawyer with 12 years of experience is reasonable. She submits that she had extensive work to complete to prepare for the summary judgment motion. This last submission does not entitle the mother to more costs. The mother had control of her own litigation strategy and who she wished to retain.

[23] When dealing with custody and access, the parties must still consider the litigation risk in proceeding with another step. Although the father believed he was being reasonable by pursuing sole custody in light of the recommendations of Dr. Smyth, he also faced risk and exposure given the status quo and the lack of any significant deficient parenting issues or setbacks by the mother recently. In addition, the father was attempting to enforce an alleged agreement between the parties and the Court notes in its decision that under basic contract principles there was not an acceptance of his offer.

[24] The Court must also consider the father’s income of $124,000 is required to care for his son half time, to pay child support and to pay for activities for the child at his sole discretion.

[25] Having considered the factors in Rule 24(11), given the nature of the case, time spent, the financial circumstances of the father, and the fact that she was not successful on all issues before the Court, the Court finds the reasonable amount of costs to be awarded to the mother is $4,000.

Madam Justice A. Doyle Date: May 06, 2016