CITATION: Anderson v. Anderson, 2016 ONSC 7774
COURT FILE NO.: F16-0167
DATE: December 15, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Amy Michelle Anderson
Applicant
– and –
Christopher Bruce Anderson
Respondent
G. Edward Lloyd, for the Applicant
Self represented
RULING ON COSTS
PEDLAR J.
[1] I have reviewed the written submissions on costs of the Applicant herein, whereby she is seeking an order for recovery on full recovery of her actual costs of this motion. The Respondent has chosen to not file any response.
[2] The Court of Appeal has created some confusion about family law costs as a result of their two decisions in Berta v. Berta and Forrester v. Dennis.
[3] When Berta was initially released, the Court of Appeal suggested that a successful party in a family law case was presumptively entitled to “full recovery costs”. The Court of Appeal subsequently issued a corrigendum deleting that comment and replacing it with the following paragraph:
“Thus, a successful party in a family law case is presumptively entitled to costs. An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M.(A.C.), at paras. 40-43.”
[4] Unfortunately, the corrigendum does not appear on the Court of Appeal website, but does appear in the report of the case.
[5] No doubt, it was this omission that likely lead a differently constituted Court of Appeal in Forrester, just decided a few weeks later, to quote from the original judgment in Berta about costs before the corrigendum was either issued or noticed.
[6] In Forrester, Justice Epstein speaking for an unanimous court relies on the original judgment in Berta and Biant v. Sagoo, 2001 28137 (ON SC), 2001, 20 RFL (5th) 284, and suggests that the preferable approach in family law cases is to have costs recovery generally approach full recovery as long as the successful party has behaved reasonably and the costs claimed are proportional to the issues in the result.
[7] This is not the law of Ontario under well settled case law and Rule 24 of the Family Law Rules.
[8] The cases relied on in Berta to suggest that full recovery is appropriate do not stand for the proposition for which they are cited and this was a simple error by the Court of Appeal in Berta, which has now been corrected. However, it throws into some doubt the analysis by the court in Forrester and suggests that the comments on Forrester about costs may well be in error.
[9] In Jackson v. Mayerle, Justice Pazaratz fully analyzes the law of costs in Ontario, including the basic principles as set out in Serra v. Serra, 2009 ONCA 105 (Ont C.A.) and conducts a thorough canvassing of the factors under Rule 24.
[10] Justice Pazaratz explores the concept of bad faith and those situations where, even in the absence of bad faith, full recovery costs may be ordered.
[11] The father spent over $300,000.00 on his custody dispute and sought $250,000.00 in costs. Ultimately, he was awarded $192,000.00, which is certainly not full recovery and certainly in the face of conduct by the mother that is far more serious than that canvassed in either Berta or Forrester above.
[12] Jackson v. Mayerle is a telling comment about the consequences of litigating a custody case and failing to act reasonably. Undoubtedly, this high conflict custody case is an extreme example of what can go wrong if parties choose the litigation route to resolve their parenting issues. Nevertheless, it is a classic tale about the ruinous effects of litigation and why parties need to find a better way.
[13] Based on the written submissions of the Applicant, I find the ill-advised conduct of the Respondent herein both before and after the hearing of the motion falls within the type of conduct referred to in Rule 24 as “unreasonable”, which is to be discouraged by the court by allowing additional awards of costs over and above partial, or substantial indemnity, where parties have acted reasonably, but are still liable to pay costs.
[14] Under the circumstance of this case, I grant the Applicant her actual costs, as claimed, in the amount of $11,829.96, taking into account the Respondent’s unreasonable conduct, the offer to settle of the Applicant, the importance and complexity of the issues raised, the rates of counsel and staff for the Applicant, and the time spent on the motion.
The Honourable Mr. Justice K. E. Pedlar
Released: December 15, 2016
CITATION: Anderson v. Anderson, 2016 ONSC 7774
COURT FILE NO.: F16-0167
DATE: December 15, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Amy Michelle Anderson
Applicant
– and –
Christopher Bruce Anderson
Respondent
RULING ON COSTS
Pedlar, J.
Released: December 15, 2016