Citation: SEIVERIGHT v. JOHNSTON, 2016 ONSC 8033

Court File No.: 11-16 Date: 2016/12/19 Superior Court of Justice - Ontario

Re: Jenelle Seiveright, Applicant And: Scott Johnston, Respondent

Before: The Honourable Justice D.A. Broad

Counsel: Robert MacLeod, for the Applicant Deborah Ditchfield, for the Respondent

COSTS ENDORSEMENT

[1] The parties have been unable to settle the question of costs in respect of the respondent’s motion and have now delivered written submissions on the issue. The following is my disposition with respect to the matter of costs.

Positions of the Parties

[2] The applicant seeks costs on a full indemnity basis in the rounded amount of $4,500. Counsel for the applicant spent 10.8 hours in respect of the matter, inclusive of preparation time, four hours for attendance on the motion and preparation of costs submissions. He claims a full indemnity rate of $400 per hour.

[3] The applicant says that her settlement position, which was communicated to the respondent and rejected by him, mirrors the disposition of the motion by the court. Counsel for the applicant points to email correspondence to the respondent’s counsel on September 18, 2016 proposing the return of the child to her primary care. He also points to a draft order which was sent to the respondent’s counsel on September 30, the terms of which he says reflect the disposition of the motion, with the exception of the commencement time for the respondent’s alternate weekend access (5:00 p.m. on Friday vs. 10:00 a.m. as ordered).

[4] The respondent argues that there should be no order for costs and that each party should bear his or her own costs. Counsel for the respondent argues that there were no formal offers to settle served under r. 18 of the Family Law Rules, there was divided success, in that the respondent was successful in obtaining an order for disclosure of Children’s Aid Society (CAS) records and the involvement of the Office of the Children’s Lawyer (OCL). She submits further that, based upon the court’s observation that both parties had used “self-help”, there should be no order for costs as both parties have been found to have acted unreasonably.

[5] The respondent argues that if a costs award is contemplated, it should be on a partial indemnity scale, should not exceed $2,000.00, and should be made “in the cause” on the basis that it would be unfair for him to be required to pay costs of the interim motion as he may be ultimately held to be entitled to custody of the child..

[6] The respondent appended his own Costs Outline on a partial indemnity basis in the sum of $3,855.37, comprised of $2,272.05 in respect of preparation, $981.75 for attendance on the motion, disbursements in the sum of $166.49 and HST in the sum of $435.08. The total time for respondent’s counsel is indicated at 11.6 hours.

Guiding Principles

[7] Pursuant to sub-rule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Sub-rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) 2003 CanLII 18880, (2003), 67 O.R. (3d) 181 (Ont. C.A.) at para 42).

[8] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 CanLII 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of r. 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[9] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[10] While the case law requires the Court to consider the means of the parties, the limited financial resources of a party do not necessarily afford immunity from a costs order, but may affect the scale or quantum of costs (see Parsons v. Parsons (2002), 2002 CanLII 45521 (ON SC), 31 R.F.L. (5th) 373 (Ont. S.C.J.) at para. 12).

[11] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Analysis

[12] In my view the applicant was the successful party on the motion. The question of the interim primary residence of the child was the predominant issue on the motion. Although the respondent succeeded on his claims for disclosure of the CAS records and involvement of the OCL, these issues were not particularly controversial and did not represent a barrier to resolution. If those were the only claims for relief, the motion likely would not have had to be argued.

[13] Moreover, the position of the applicant that the child should be returned to her primary care, with alternate weekend and mid-week access to the respondent was vindicated by the outcome. In my view the applicant took a reasonable approach to trying to resolve the issues and to avoid litigation.

[14] Although the offers to settle made by the applicant may have lacked the formality required by the strict terms of r. 18, I am nevertheless entitled to consider her offers in assessing which party was “successful” on the motion.

[15] In my view the presumption in r. 24(1) that the applicant is entitled to costs in respect of the motion has not been displaced. I am not persuaded that costs should be made “in the cause” on the basis that the respondent may ultimately be successful at trial. If this were the proper consideration, costs disposition on motions would be routinely made “in the cause.” This would run counter to the weight of authority, the objectives of the costs regime and to r. 24(10).

[16] The applicant’s offer to settle did not meet the requirement of r. 18(14) para.5 in light of the deviation between her offer and the court’s disposition respecting the start time of respondent’s weekend access. Full indemnity costs are therefore not applicable.

[17] The respondent’s Costs Outline provides insight into what his reasonable expectations were in respect of costs. The time spent by his counsel and her hourly rate both exceeded that of the applicant’s counsel.

[18] In my view it is appropriate to award costs to the applicant on a partial indemnity basis in the sum of $3,400.00 inclusive of fees, disbursements and HST. This figure reflects a partial indemnity rate of $280/hour plus HST. The applicant did not claim any disbursements.

Disposition

[19] The respondent shall pay costs to the applicant fixed in the sum of $3,400.00 within 30 days hereof.

D.A. Broad, J.

Date: December 19, 2016