Court File and Parties
COURT FILE NO.: FS-14-399356 DATE: 20160530 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jeannette Forsythe, Applicant AND: Jeffrey Leonard Tone, Respondent
BEFORE: Kiteley J.
COUNSEL: Esther L. Lenkinski, for the Applicant Susan Adam Metzler, for the Respondent
HEARD: in writing
Endorsement as to Costs
Procedural Background
[1] Both parties had brought motions returnable February 23, 2016. On that occasion, I made an endorsement dealing with the following:
(a) consent adjournment of paragraph 2 of the Respondent’s motion and paragraph 13 of the Applicant’s motion (both dealing with parenting issues); (b) consent adjournment to March 10, 2016 of three paragraphs of the Applicant’s motion dealing with disclosure and questioning of the Respondent’s employer; (c) order dealing with paragraph 4 of the Respondent’s motion and paragraphs 7 and 8 of the Applicant’s motion in relation to questioning of Mr. Marshall (an agent of the Applicant’s former employer); (d) reserving other matters on which I heard submissions but for which I did not have time to do an endorsement on that date.
[2] In a subsequent endorsement dated March 8, 2016, I dealt with the following:
(a) consent order appointing a case management judge; (b) expanding the minimum notice for motions from 4 days to 7 business days; (c) questioning of the parties including limiting the scope of questioning so as not to include evidence with respect to the parenting arrangements which motion had been adjourned sine die awaiting the input of the OCL; (d) dismissing the motion by the Applicant for an affidavit of documents and related relief as being premature or not required by rule 19.
[3] On March 8, 2016, before the Applicant had received my endorsement of that date, the Applicant launched her own motion with respect to parenting issues returnable March 10. In an endorsement dated March 10, I dealt with the following:
(a) Applicant’s motion with respect to questioning of the Respondent’s employer adjourned to April 12, 2016 before me if available; (b) parties and counsel including OCL to attend a case conference on March 23, 2016; (c) remainder of motions adjourned to a date to be set at the case conference; (d) neither party shall recover costs of the attendance on March 10.
[4] On March 23, 2016, I held a case conference at which the discussion focused primarily on parenting issues. As I noted in the endorsement, the parents agreed to engage Dr. Barbara Fidler for the children and they expected to formalize the terms of her engagement in writing. The parents also agreed to establish a parenting code of conduct. I noted as well that counsel had agreed to a timetable for questioning that would facilitate a productive settlement conference in July, 2016. I made the following orders:
(a) settlement conference before me on July 8 with directions as to filing documents in advance; (b) remainder of questioning of the Applicant and all of the questioning of the Respondent no later than May 12, 2016; (c) costs of the motions that were reserved to the case conference to be the subject of written submissions by May 12, 2016 unless counsel were able to agree as to those costs.
Positions of the parties as to costs of motions returnable February 23, 2016
[5] The Respondent takes the position that the Applicant should pay costs to the Respondent consisting of fees in the amount of $6,756.86 including HST (partial indemnity) or $10,602.23 including HST (substantial indemnity) together with disbursements in the amount of $247.58 on the basis that the Respondent was more successful than the Applicant in relation to the motions argued on February 23; in the unusual circumstances of the case, the Applicant’s conduct after the motion illustrated that the Applicant and her counsel were “still trying to circumvent appropriate process and, by then, court order, to do things “their way”; the Applicant’s bill of costs which had been sent in draft to counsel for the Respondent was “beyond excessive”; and the Applicant’s offer to settle dated February 18 is irrelevant for purposes of costs considerations.
[6] The Applicant asks for an order that the Respondent pay to her substantial indemnity costs consisting of fees in the amount of $14,664 and, together with HST and disbursements totals $16,905.92. She takes the position that she was more successful than was the Respondent; that the issue of the children’s living arrangements was premature and was postponed; that the complexity arose from the unique circumstances of the court interpreting a prior order with respect to the examination of the third party; that the Applicant has had to spend a significant amount of financial resources in defence of the “baseless allegations made by the Respondent throughout the proceedings”; that the Respondent’s conduct has caused her to incur increased costs; that she made an offer to settle dated February 18 that was the same as the order dated February 23 in 4 respects; that the Respondent did not serve his own offer to settle; that the Respondent has acted in bad faith in four enumerated ways; that the Respondent’s conduct in the proceedings “has been so acrimonious” that the court appointed a case management judge and produced endorsements detailing the procedure that governed the questioning; and that the Respondent’s conduct and approach to the litigation is “unacceptable”.
Analysis
[7] When the motions were launched, there were two categories of issues: parenting issues and procedural issues. As indicated above, the parenting issues were not dealt with pending input from the OCL. Procedural issues were resolved partly on consent and partly by adjudication. Neither party achieved any “success” on the parenting issues. Success was divided on the procedural issues. The presumption in rule 24(1) that the successful party is entitled to costs does not apply. The question is whether costs should be apportioned pursuant to rule 24(6).
[8] Rule 24 identifies the factors relevant to the amount of costs which includes bad faith by either party, reasonable or unreasonable behavior by either party, the importance, complexity or difficulty of the issues, the lawyers’ rates, the time properly spent on the case, expenses properly paid or payable and any other relevant matter.
[9] The issues were important but not complex.
[10] The Applicant takes the position that the Respondent has acted in bad faith. In Scalia v. Scalia, 2015 ONCA 492, the Court of Appeal at paragraph 68 held as follows:
. . . The legal test for bad faith in the family law context. . . is that the impugned behavior must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court”. In short, the essential components are intention to inflict harm or deceive.
[11] I do not quote from paragraph 28 of the submissions on behalf of the Applicant. I say only that the four enumerations of the conduct on the part of the Respondent do not constitute bad faith as defined by the Court of Appeal.
[12] Rule 24 also encompasses unreasonable behavior by either party. In general, courts must be cautious at the interim stage of proceedings about making findings of fact that derive from findings of credibility. I do not intend to parse the letters between counsel and analyze the evidence of the parties to make findings of credibility that would support findings of reasonable or unreasonable behavior particularly on matters of a procedural nature.
[13] In my endorsement dated February 23, I observed the following:
It is unfortunate that the conflict between counsel over the allocation of time and the circumstances of his questioning has left a non-party in the middle. In the order I make below, I am trying to eliminate the conflict.
[14] In other words, both parties were unable to find a solution that alleviated the third party from being thrust into the conflict.
[15] In my endorsement dated March 8, 2016, I observed at paragraph 3 that “given the high conflict generated in this case between the clients and unfortunately, between counsel” a case management judge should be appointed. And at paragraph 7 I observed that “the degree of conflict in the case is reflected in the fact that so much correspondence and so much evidence is before me on what are straitforward procedural questions”.
[16] In other words, both parties and their counsel were unable to find solutions on procedural issues.
[17] Pursuant to rule 18(16) the court may consider all offers to settle. The Respondent’s motion was served in the afternoon of Thursday February 17. On Friday, February 18, 2016, the Applicant’s counsel served an offer to settle which provided for the appointment of a case management judge; the adjournment of the Respondent’s motion to change the children’s living arrangements; an order limiting Marshall’s questioning to two hours by counsel for each of the Applicant and the Respondent; an order requiring the Respondent to make disclosure of 4 specified requests by March 1, 2016; an order for questioning of the Respondent on March 7 and 8; an order for the continued questioning of the Applicant on or before March 21 limited to one hour arising from undertakings given at her questioning on October 2; and no costs if the offer was accepted by Saturday, February 19 at 4:00 p.m.
[18] Within 24 hours of being served with the Respondent’s notice of motion, the Applicant caused an offer to settle to be served which addressed the outstanding issues. The Applicant was not successful on all of the issues contained in the offer but she did make an attempt to resolve the issues. The Applicant acted reasonably in making that offer immediately after the motion had been served. On the other hand, the Respondent made no offer to settle the motions then returnable February 23.
[19] As indicated above, the bill of costs submitted on behalf of the Respondent is considerably less than that submitted on behalf of the Applicant. Both counsel expended significant time in communications over procedural wrangling that ought not to be reinforced or rewarded by an order of costs.
[20] The last factor referred to in rule 24 is “any other relevant matter”. There are two matters that are relevant. The first is the alleged post-motion conduct by the Applicant. It is rare that such conduct would be a factor in an award of costs. I decline to consider it in this case because it was contained in the written submissions as to costs that were exchanged on the same day. It would be contrary to the primary objective of the Family Law Rules and not result in fair treatment of the parties if I considered such allegations ostensibly supported by the correspondence that was attached without giving the Applicant an opportunity to respond.
[21] The second relevant matter is the effect of an order for costs. Success was divided which means I have the jurisdiction to apportion costs. The Applicant did serve an offer to settle, which, although not wholly consistent with the outcome, demonstrated reasonable behavior. However, it is insufficient to persuade me to make an order for costs in her favour because it would serve to vindicate her when the circumstances of these motions are such that neither party should be vindicated.
Order
[22] Neither party shall pay or recover costs of the motions dealt with in my endorsements dated February 23, 2016 and March 8, 2016.