CITATION: Lachapelle v. Leblanc, 2016 ONSC 7245
COURT FILE NO.: FC-15-2316
DATE: 2016/11/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NADINE LACHAPELLE
Applicant
– and –
REBECCA LEBLANC
Respondent
Karen Pelletier, counsel for the Applicant
Cecil Lyon, counsel for the Respondent
HEARD: In Writing
Cost Endorsement
[1] On September 13, 2016, the parties appeared before me seeking various claims for relief centred on the custody dispute regarding their child. On September 21st, 2016, I made a ruling on the issue of custody; a right of first refusal; se the exchange time for the child; selection of the child’s dentist; sharing of the child during the holidays; request for police enforcement; and I deferred the issues of child support, spousal support and all issues concerning the assessment and costs pending receipt of further information.
[2] I received the information requested and made my ruling dated October 11, 2016 on child support, spousal support, and the assessment. I now address the issue of costs arising out of this motion.
[3] The applicant seeks costs in the amount of $14,000. The respondent seeks partial indemnity costs in the amount of $17,653.21 and complete indemnity costs in the amount of $23,430.94. In addition, the respondent seeks costs in the amount of $1,500 for the preparation of her costs submissions.
The issues at the motion
[4] Between both notices of motion, the issues to be resolved by me were as follows:
(a) sole custody of the child;
(b) in the alternative, an interim without prejudice order granting joint custody with final decision-making to one of the parties;
(c) an interim without prejudice order that the parties continue the current 2/2/3 parenting schedule;
(d) the determination of the exchange time for the child;
(e) a right of first refusal to the other parent;
(f) a determination of which dentist the child shall be treated by;
(g) a determination of which school the child should attend;
(h) a parenting assessment including a determination of who should conduct such assessment and which party shall be responsible for the cost of such assessment;
(i) an order that the parties retain an English-speaking or bilingual co-parenting counsellor in Ottawa and in the alternative, an order that the party shall retain an English-speaking or bilingual parenting coordinator in Ottawa;
(j) an order that the parties be placed on the Coordinated Case Management Program in Ottawa;
(k) determination of how the parties will share various holidays including Christmas, Easter, Thanksgiving and summer holidays ;
(l) an order that the child continue to be treated by a therapist namely, Rehka Chargarlamundi;
(m) the applicant’s request for police enforcement of any custody\access order;
(n) the determination of the amount of child support payable by the applicant to the respondent based on the shared custody arrangement;
(o) a determination of which section 7 expenses are to be shared and in what proportion;
(p) a determination as to whether the respondent is entitled to spousal support and if so, in what amount;
(q) a determination of the commencement date of child support and spousal support (if any); and
(r) costs.
[5] At the beginning of the motion, the parties were able to agree on certain issues. They agreed that they would share the physical custody of child on a 2/2/3 schedule, that the Christmas holidays would follow the normal schedule, that there would be an assessment, that the child would continue with the therapist and that the only section 7 expenses would be daycare.
[6] Also, at the beginning of the motion, the respondent adjourned a request for an English-speaking or bilingual co-parenting counsellor in Ottawa.
[7] On the contested issues, I made the following rulings in my endorsement of September 21, 2016 as follows:
(a) Both parties sought an order for sole custody. I declined to make an order for temporary sole custody in order that any major decision regarding the child would have to be made jointly and left the issue of custody to the decision of the trial judge. Success was divided.
(b) The respondent sought the right of first refusal which I declined to grant. The applicant was successful.
(c) The applicant requested that the exchange time be at 9 am while the respondent proposed 3:45 pm. I ruled that the exchange time would be at 3:45 pm. The respondent was successful.
(d) The respondent wanted the child to be transferred to an unnamed French immersion school while the applicant wanted the child to continue to attend her present school. I found that the child should remain in her present school. The applicant was successful.
(e) The applicant proposes that the child change from her current dentist Dr. Pella to Dr. Mahal. I declined to change the dentist. The respondent was successful.
(f) The applicant requested the enforcement of any custody or access order by the police which I refused to do. The respondent was successful.
[8] In my endorsement of October 11, 2016 I made rulings on the following issues:
(a) I appointed a psychologist proposed by the applicant, ordered the parties to equally front the cost of the assessment and ordered the parties to equally share in the cost of its translation. The applicant was successful on the selection of the assessor. Neither party were successful on the cost of the assessment or the cost of the translation.
(b) I ordered the applicant to pay the respondent retroactive to March 1, 2016 child support in the amount of $498 per month reserving the right to claim retroactive support to December 2015 at trial. The success was divided.
(c) I ordered the applicant to pay to the respondent spousal support in the amount of $1200 per month retroactive to March 1, 2016 less any payments made since March 1, 2016. The respondent was successful.
(d) I ordered the respondent to pay to the Applicant $125 per month as her contribution to the child’s daycare expense retroactive to March 1, 2016. The amount is less than what was sought by the applicant so the respondent was successful.
The [Family Law Rules](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html)
[9] Under Rule 24 (1) of the Family Law Rules, O. Reg. 114/99 there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[10] Rule 24 (5) states that in deciding whether a party has behaved reasonably or unreasonably the Court shall examine,
(a) The parties’ behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) The reasonableness of any offer the party made; and
(c) Any offer the party withdrew or failed to accept.
[11] Rule 24 (10) indicates that promptly after each step in the case, the judge or other person who dealt with that step shall decide any summary manner, who, if anyone, is entitled to costs, and set the amount of costs.
[12] Rule 24 (11) states that 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 witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;
(e) Expenses properly paid or payable; and
(f) Any other relevant matter.
[13] In Serra v. Serra, 2009 ONCA 395, the Court held that family law costs rules are designed to foster three important principles:
(a) To partially indemnify successful litigants for the cost of litigation;
(b) To encourage settlement; and
(c) To discourage and sanction inappropriate behaviour by litigants.
[14] Justice Aston in Delellis v. Delellis, 2005 CanLII 36447, (Ont. S.C.) stated at para. 95:
It is important to reiterate that when the court is fixing costs, it is not undertaking a simple mechanical exercise. Such an exercise would be inappropriate and in fact undesirable …
[15] The time properly spent by the Applicant preparing for and attending on the motion is not to be reimbursed dollar for dollar. In Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), the Court held that the Court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings.
Analysis
Successful Party
[16] To be able to decide who was a successful party, I must canvass the issues, the positions taken and the order made. However, not all issues are of similar weight. I should not simply calculate how many issues were involved and who was successful to determine on which party was successful on the issue of costs.
[17] I find that the parties had divided success on the issues adjudicated in my endorsement of September 19, 2016. With respect to the remaining issues, the applicant was successful on the name of the psychologist but I ordered that the cost of the psychologist and the cost of the translation of the psychological report were to be shared equally.
[18] The respondent was successful on the issue of entitlement to spousal support including retroactivity to March 2016. On the issue of child support, the parties agreed on the figure of $498 but I could not undertake the analysis required under section 9 of the Child Support Guidelines because of the applicant had not provided a childcare budget. Consequently, the order made was without prejudice to the respondent arguing a different amount based on a proper section 9 analysis.
[19] I find that the respondent is entitled to some costs. I find that success was divided except for one main issue being spousal support. The applicant’s position was that there was no entitlement to spousal support. I found there was an entitlement and made an order retroactive to March 2016. Consequently I find that the respondent is entitled to cost related to the issue of spousal support.
The importance, complexity or difficulty of the issues
[20] From the amount of the materials filed and considering the issues canvas, this motion was very important to both parties.
[21] The motion was not complex or difficult but decisions had to be made as the parties could not agree.
The reasonableness or unreasonableness of each party’s behaviour
[22] I find that both parties acted reasonably.
The lawyer’s rates and disbursements
[23] I find that the applicant’s counsel hourly rate of $350 to be reasonable based on his 27 years of experience as a family law lawyer. I also find that the rates set for the additional lawyer and law clerks to be reasonable.
[24] With respect to the disbursements, I agree that disbursements are reasonable and necessary.
The time properly spent on the case
[25] I have reviewed the time summary and have reviewed the detailed Bill of Costs.
Offers made
[26] Offers to settle are the yardstick with which to measure success and are significant both in considering liability and quantum as set out in Osmar v. Osmar (2000), 2000 CanLII 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.).
[27] The applicant filed two offers to settle. The first offer is not a formal offer to settle but it is signed by the applicant and dated March 2, 2016. In that offer, the parenting arrangement is as agreed to by the parties save and except that the issues of holidays was deferred; the applicant proposed Diane Perusse as the assessor with the cost to be shared; offered to pay $499 child support as of March 1, 2016, agreed to pay 70% of the section 7 expenses and sought the police enforcement of the order. The offer also indicated that it would be withdrawn or before March 15, 2016 and if the offer is accepted after that date the respondent would be required to pay the applicant’s costs on a full indemnity basis. That offer was not accepted.
[28] On September 12, 2016, the applicant made a second offer to settle. Pursuant to that offer the parties would have joint custody; the parenting arrangement would be the same, there were provisions for holidays, the child’s school would not change, the child will attend the same therapists, the child would change dentist, the assessment would be conducted by one of three people with the cost to be shared in a pro rata to income basis , the applicant pay child support of $499 commencing September 1, 2016, the parties will to share the section 7 expenses, and there would be no spousal support payable.
[29] In response, the respondent made an offer on January 17, 2016 that the parties would undergo an assessment, the parties would register the Ottawa High Conflict project and there were various cost consequences for the delay in accepting the terms of the offer. On January 17, 2016, the respondent made an offer to settle child and spousal support by proposing to receive $1,500 per month as spousal support effective January 1, 2016 and $504 per month commencing January 1, 2016 as child support as well as provisions regarding security for support and cost. That offer was not accepted.
[30] On September 9, 2016, the respondent made a further offer to settle where she proposed co-parenting counselling, an assessment, joint custody of the child, the retention of Dr. Pella is the child’s dentist, the transfer of the child to an English-speaking school with French immersion, the parenting arrangement of 2/2/3; child support of $381 per month; spousal support $1,400 per month and costs. That offer was not accepted.
[31] The respondent’s offers on quantum of spousal support were more than my order while the applicant denied any liability for support.
Any other relevant matter
[32] The respondent submits that a higher award of costs be granted because the applicant deliberately decided to switch the litigation from pleading her case in English to French and, according to the respondent, is both insulting to the Court and to the respondent and unnecessarily delayed the matter and unnecessarily increased the respondent’s legal fees.
[33] I could not disagree more with this submission. Any party participating in a proceeding in the province of Ontario has the right, at any time, to represent themselves in either French or English. In this case, the applicant decided to exercise that right. While it may have delayed the matter to allow for the translation of the applicant’s pleadings, she was well within her rights to do so.
Disposition
[34] Taking all the factors set out herein into consideration, I order the Applicant to pay to the Respondent the sum of $4,000 inclusive of disbursements and HST within 60 days of the date of this endorsement.
Shelston J.
Released: November 22, 2016
CITATION: Lachapelle v. Leblanc, 2016 ONSC 7245
COURT FILE NO.: FC-15-2316
DATE: 2016/11/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NADINE LACHAPELLE
Applicant
– and –
REBECCA LEBLANC
Respondent
Costs ENDORSEMENT
Shelston J.
Released: November 22, 2016