Court File and Parties

Court File No.: FC-15-1483 Date: 2016/08/23 Ontario Superior Court of Justice

Between: Gautiam Siddartha Banerjee, Applicant – and – Yukito Haraguchi, Respondent

Counsel: Gregory Ste. Marie, for the Applicant Any Mayer, for the Respondent

Heard: By written submissions

Decision regarding costs

Before: Sheard J.

Overview

[1] This cost award is in respect of two motions:

(a) the July 5, 2016 Motion brought by the Respondent mother to be heard on an urgent basis on July 7, for an order allowing her to travel to Japan with the parties’ son, Kayton Siddartha Banerjee born June 25, 2010 (“Kayton”) as soon as possible until July 24, 2016 or, alternatively, from August 12, to 31, 2016; and

(b) the July 7 Motion brought by the Applicant father to be heard on July 7 for a number of orders including: an order granting joint custody of Kayton; a parenting schedule; that Kayton be permitted to travel to Japan with the Respondent mother on dates to be specified, upon the consent of the Applicant with the itinerary specified; that the parties attorn to the jurisdiction of Ontario with respect to the custody, care and access of Kayton; for an order that the Applicant father be permitted to take Kayton to New Brunswick between August 27 and September 4, 2016; for a custody and access assessment to be performed by Dr. Weinberger, with the cost of that assessment to be paid by the Applicant at first instance with the contribution of the parties to be determined by agreement or by the court; for spousal and child support orders effective April 1, 2016 in the amounts of $2,400 and $925, respectively; for the rescission of parts of an Interim Separation Agreement and paragraphs 1 and 2 of an Amending Agreement, with the balance of the two agreements to remain in force; and for the issue of a retroactive variation of child and spousal support to be effective as of January 1, 2015 to be reserved to trial.

[2] The Master hearing the Respondent’s motion on July 7 determined that it was not urgent and both hers and the Applicant’s motion were put over to July 14, 2016.

[3] On July 14, 2016 the parties agreed to a consent order that dealt with a number of the issues raised on the Applicant’s motion, including child and spousal support, retroactive to April 1, 2016; rescission of the portions of the Interim Separation Agreement and portions of the Amending Agreement; joint custody; the travelling that each parent wanted to have with Kayton in July and August, 2016; and an order that Dr. Alex Weinberger undertake a s. 30 assessment.

[4] As per the recital in the consent order, all matters in the order were on consent except for the orders contained at paragraphs 9. a) i) to iii).

[5] Paragraphs 9. a) i) to iii) contain the parenting schedule for Kayton.

Positions of Parties

[6] The parties provided written costs submissions. As requested, each is three pages in length. Each also attaches various offers to settle.

[7] In his submissions, the Applicant states that it was not until the morning of July 14, 2016, at court, that the Respondent consented to the terms set out in the draft order, the terms of which had been set out in a Consent dated June 29 and in the Applicant’s Offers to Settle of July 8 and 13, 2016. In the end, the only issues to be argued were whether the Applicant would be entitled to an extra night of access to Kayton and costs. The Applicant asserts therefore that he is presumptively entitled to costs. He seeks his costs on a full indemnity basis from at least April 28, 2016 and partial recovery from March 30, 2016.

[8] In her submissions, the Respondent agrees that the parties had reached an agreement on all issues as set out above. She did not agree to expand Kayton’s overnights with the Applicant from five to six overnights every two weeks. After hearing the motion, I determined that it should increase to six overnights every two weeks.

[9] In her cost submissions, the Respondent acknowledges that she cannot claim success on the motion. The Respondent submits that she did not behave unreasonably in bringing her motion to travel with Kayton to Japan and was only trying to visit her mother who was recovering from an accident. The Respondent asserts that the Applicant refused a reasonable request to allow Kayton to travel to Japan with her unless the Respondent agreed to the relief raised in the Applicant’s cross-motion. The Respondent also asserts that the Applicant proceeded with a cross-motion asking for relief which had already been agreed to by the Respondent. The Respondent submits that the parties should bear their own costs of the motion or in the alternative that a fair assessment of the Applicant’s costs would be between $1,000 and $2,000 and that partial indemnity costs are the norm, absent a good reason to award a higher level of costs.

Factors

[10] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “Family Law Rules”) and include that the successful party is presumed to be entitled to costs, the reasonableness of the behaviour of each party and any offer to settle, any acts of bad faith by any party, the importance, complexity or difficulty of the matter, the scale of costs, hourly rates and time spent, and the reasonable expectations of the losing party.

Success

[11] In this case, except with the issue of the additional night of overnight access to the Applicant, this matter proceeded before me on a consent basis. For that reason, it is only by reference to the Offers to Settle, discussed in detail below, that I can assess the reasonableness or unreasonableness of positions taken by the parties prior to the motion and prior to the consent being reached.

[12] The only issue that was argued before me is the issue of overnight access. On that issue, the Applicant was clearly successful, which point was conceded by the Respondent in her Costs Submissions.

Complexity and Importance of the Issues

[13] In their Costs Submissions, both parties identified the parenting schedule to be of great importance to them. The Applicant father also identified the terms of travel outside the country and the reduction of interim support as an important issues to him. The Respondent’s Costs Submissions seem to suggest that finances were of less importance to the Applicant, as he lives rent-free with his parents, whereas she has found it difficult to find employment in Ottawa. The latter two issues were resolved on consent but I conclude that all of the above issues were of importance to the parties.

Unreasonable Behaviour or Bad Faith

[14] Counsel provided copies of the correspondence exchanged regarding the issues that were raised in the Notices of Motion. Counsel for the Applicant provided the following:

(i) 2016 April 28: Letter to the Respondent mother’s lawyer enclosing an Amending Agreement and a consent to the Amending Agreement to be signed by the parties. The Consent agreement begins with a preamble and concludes with seven numbered paragraphs to which the parties agree. Those seven numbered paragraphs are identical to paragraphs 1 through 7 in the July 14, 2016 consent order;

(ii) 2016 June 22: Letter to the Respondent’s lawyer requesting the return of the signed consent and amending agreement on support. This letter also addresses summer access and, finally, proposes a s.30 custody and access assessment to be undertaken by Dr. Weinberger. That assessment is to be conducted on the same terms as set out in the July 14, 2016 consent order;

(iii) 2016 June 29: Letter to the Respondent’s lawyer enclosing a consent and amending agreement which contains the same paragraphs 1 through 7 referenced in the Applicant lawyer’s April 28 letter but with additional paragraphs 8 through 20. Paragraphs 8, 10-11, and 13-20 are identical to those paragraphs as set out in the July 14, 2016 consent order.

Paragraph 12 in the proposed Consent and amending agreement refers to Kayton travelling from Ottawa to Japan in July but the travel dates are not filled in. Paragraph 9 is different from the July 14, 2016 Consent order in that it proposes that mid-week access to be from Wednesday from 3 p.m. until Thursday at 10 whereas the July 14, 2016 order has that mid-week access from Tuesday until Wednesday. That difference is not material to this cost endorsement.

Also, the July 14 order includes a paragraph 9.a) iii) that makes it clear that once Kayton starts school the access and switch-over times will be from after school to the start of school in the morning. Finally, the Consent and amending agreement make no reference to costs or to enforcement through the Family Responsibility Office;

(iv) July 8, 2016: Applicant’s Offer to Settle that mimics the terms set out in the June 29 letter except that paragraph 12 contains the dates for the Respondent’s trip with Kayton to Japan: July 9 or July 10 returning on July 24, 2016;

(v) July 13, 2016 (2:54 p.m.): Respondent’s Offer to Settle that is essentially consistent with the Applicant’s offers except that it does not include the one mid-week overnight to the Applicant in Week 2. Also, it is silent with respect to the rescission of portions of the Interim Separation Agreement and the Interim Amending Agreement and does not specify the date upon which the child and spousal support is to be changed. This offer provides that each party shall bear their own costs of the motion;

(vi) July 13, 2016 (4:39 p.m.): Applicant’s Offer to Settle, withdrawing the Applicant’s Offer to Settle dated July 8, 2016. This last offer appears to be identical to the Applicant’s July 8, 2016 offer except that the travel dates for the Respondent’s travel with Kayton to Japan are now August 12 to August 27, 2016 and it provides that Kayton will be turned over to the Applicant in Toronto on August 27, 2016. Those dates and arrangements were set out in the Respondent’s offer to settle of July 13. The Applicant’s July 13 offer is silent on the issue of costs.

[15] Rule 18 (11) of the Family Law Rules provides that when an offer does not deal with costs, either party is entitled to ask the Court for costs.

[16] Based on the materials provided to me in the parties’ Costs Submissions it appears that the settlement proposal put forth by the Applicant in the April 28, 2016 letter is part of what is contained in the July 14, 2016 consent order. No explanation was offered as to why the Respondent did not sign a Consent to those terms until just prior to the hearing of the motion.

[17] In the Respondent’s Costs Submissions, she asserts that the variation in spousal support was agreed to in May 2016 and that there was no need to include that term in the Applicant’s cross-motion. The correspondence from the Applicant’s lawyer dated April 28, June 22 and June 29, 2016 suggests that the Respondent had been asked for and refused or failed to provide her written consent to those terms.

[18] In the Respondent’s Costs Submissions, it is argued that the Applicant “unilaterally reduced his support obligation in April 2016”. The Respondent’s submissions suggest that the Applicant’s reduction in spousal and child support remained a live issue, one to which the Respondent had not consented. It is difficult to accept the position of the Respondent that those terms had been agreed to when she did not sign the Consent sent to her numerous times for signature.

[19] I conclude that, in the face of an unanswered request for the Respondent to sign the Consent and to thereby acknowledge in writing what had apparently been agreed to in May 2016, it was reasonable for the Applicant to have sought a court order to that effect.

[20] In determining costs, I take into account the Respondent’s refusal to sign the Consent, particularly as the Respondent has asserted in her Costs Submissions that those matters were agreed to and that the Applicant was unreasonable in seeking that relief on his cross-motion.

[21] In her motion brought July 5, 2016 the Respondent asks, in the alternative, for an order allowing her to take Kayton to Japan from August 12 to August 31, 2016. She knows her suggested dates will overlap by four days with the Applicant’s known plans to take Kayton to visit his family in New Brunswick on August 27, 2016. While the Respondent’s request for an order allowing her to travel to Japan with Kayton on dates that she knows conflicts with the Applicant’s travel plans may fall short of being unreasonable, at the least it required the Applicant to respond with his own motion to firm up the Respondent’s travel dates and to ensure that his planned trip would not be derailed by the Respondent’s plans.

Scale of Costs and Offers to Settle

[22] As set out above, I have compared the Offers to Settle exchanged by the parties’ counsel and conclude that the first seven paragraphs of the July 14, 2016 order are as set out in the Consent sent to the Respondent on April 28, 2016.

[23] The position taken by the Applicant in the June 22, 2016 letter with respect to the parenting arrangement with Kayton is a “week about arrangement”. By letter dated June 29, 2016 the Applicant moves off that position and seeks less than that: a total of six days out of every 14. That offer was served before the motions of July 5 and July 7, 2016. At no time did the Respondent agree to that term.

[24] In her Notice of Motion, the Respondent asks to take Kayton to Japan “as soon as possible” and to have him back on July 24, 2016. She does not provide a departure date. As set out above, her alternative dates in August, would interfere with the Applicant’s planned summer trip with Kayton.

[25] Overall, I conclude that the Applicant’s offers to settle dating back to April 28, 2016 and pre-dating the bringing of Respondent’s motion and the hearing of both Motions entitle him to costs. I do not agree with his submissions that he is entitled to his costs on a full recovery basis from at least April 28, 2016. The only issue argued before me was the sharing of parenting time with Kayton. On that issue, the Applicant was successful on the same terms as set out in his Offer of June 29, 2016.

Hourly rates, Time Spent and Proportionality

[26] The Applicant did not provide a Bill of Costs. He did provide a computer printout that showed time and disbursements. By my addition, the full indemnity fees recorded on and after June 27, 2016 to July 20, 2016, which also includes attendance at court on the motions, preparing the July 14, 2016 order and 2.4 hours to prepare cost submissions, totals $10,777.50 before HST and disbursements.

[27] I understand that an order for costs was made by Master Champagne with respect to the July 7, 2016 motion. That order was for $500. Therefore, the $1,280 in fees related to the July 7, 2016 court appearance must be deducted from the fees and disbursements shown on the Applicant lawyer’s computer printout ($10,777.50 - $1,280 = $9,497.50).

[28] The Respondent’s Bill of Costs does not provide a breakdown of the time such that I might compare it to the time spent by the Applicant’s lawyer. I do note that in the Respondent’s Bill of Costs, the total amount claimed for fees and disbursements is $4,718.73. I cannot tell whether those fees date back to April 28. They appear to include only materials prepared to respond to the Applicant’s cross-motion.

[29] I have looked at the time spent by the Applicant’s lawyer and cannot conclude that too much time was spent. Both parties agreed that these matters are important to them. The Applicant did his best to resolve all of the financial issues by Consent. Had the Respondent signed the Consent in April 2016, those financial issues would not have been seen as live issues and would not need to have been raised in the Applicant’s cross-motion.

[30] In his offers to settle, the Applicant also tried to resolve the travel issues. He reasonably asked for the Japan travel dates and an itinerary from the Respondent. Based on the materials before me, it appears that the first time the Respondent provided her July Japan travel dates was in her Offer to Settle dated July 13, 2016. The Applicant immediately revised his Offer to Settle to incorporate the Respondent’s dates. Had that information been provided in June, the only remaining issue would likely have been whether Kayton would spend 5 nights or 6 nights out of 14 with his father.

Amount the unsuccessful party would reasonably expect to pay

[31] As both parties were represented, the Court must assume that they are aware of the costs provisions of Rule 18 of the Family Law Rules. Indeed, that inference is all the greater given that the Respondent served an offer to settle on July 13, 2016. Rule 18 (14) provides that a party is entitled to costs to the date the offer was served and full recovery of the costs from that date, if it is made at least one day before the motion date. Further, the Respondent’s July 13, 2016 Offer to Settle specifically provides that each party shall bear their own costs of the motion, which makes it clear that the Respondent understood the ramifications of an offer to settle.

[32] Based on information before me, it is difficult to determine what amount the Respondent would have reasonably expected to pay in costs. In her own Bill of Costs, the Respondent claims full indemnity costs of the motion of $3,922.00, plus disbursements, and taxes.

[33] In her Costs Submissions, the Respondent argues that the costs fixed by Master Champagne on July 7, 2016 extinguish all costs incurred prior to that date. I do not agree. On my reading of that endorsement, Master Champagne was dealing with the costs of the July 7 court appearance only, as she had determined that the motion could not proceed on that date because it was not urgent. The balance of the Respondent’s motion dealt with her request for order allowing her to take Kayton to Japan in July or August 2016.

[34] Notwithstanding the above, I do not conclude that the Respondent reasonably expected that she would have to pay the costs that are being sought by the Applicant and which approach $16,000 before HST.

[35] In her submissions, the Respondent also points to the fact that she is the recipient spouse for spousal support and that she has little or no income from which to pay costs. She reasons that any costs award would erode her ability to properly provide for Kayton’s support. What is absent from that reasoning is the need for the Respondent to understand that she must behave reasonably in negotiations and that her lack of financial resources does not immunize her from the consequences of unreasonable behaviour.

Disposition

[36] Having considered the above, I order the Respondent to pay costs fixed in the amount of $8,750.00 for fees and disbursements and HST. This award is intended to be in addition to the $500 awarded by Master Champagne. Had the Respondent been in a better financial position, I would have exercised my discretion differently and awarded a higher amount in costs to the Applicant.

Sheard J.

Released: August 23, 2016