Court File and Parties
CITATION: Stacey v Stacey 2017 ONSC 1226
COURT FILE NO.: FC-15-2824
DATE: March 14, 2017
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Mark Derek Stacey
Applicant
– and –
Karen Stacey
Respondent
Allan Hirsch, counsel for the Applicant
Karen Hogan, counsel for the Respondent
HEARD: In Writing
costs Endorsement
Overview
[1] The sole issue in this application was the Applicant’s (“father”) request that the two children of the marriage namely Joseph Edward Stacey, born October 28, 2004 (“Joseph”) and Evelyn Robyn Stacey, born March 6, 2008 (“Evie”), be returned to England. The mother opposed this request.
[2] On December 22, 2016, I ordered the children returned to England. The children were returned to England.
[3] The father now seeks cost amount of $32,000 being approximately 90% of full recovery based on the factors set out in the Family Law Rules, the Hague Convention, the mother's conduct during the proceeding and the mother's refusal to accept a reasonable settlement offer.
[4] The mother submits that each party should pay their own costs.
The Family Law Rules
[5] 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.
[6] 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.
[7] The factors to be considered in assessing costs are set out in Rule 24 (11) of the Family Law Rules which include:
(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.
[8] 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.
[9] 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 (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
Analysis
Successful Party
[10] As the children were returned to England, I find that the father was a successful party as his application. He is presumptively entitled to his costs.
The importance, complexity or difficulty of the issues
[11] The issue of returning the children to England was very important to both parties. The issue was not complex but was difficult. Both parties submitted extensive affidavit material and jurisprudence to support the various positions. Both counsel were extremely thorough in their presentation of their client’s respective positions.
[12] The father retained lawyers in England and in Canada in this matter. The lawyers in England were involved in drafting the initial application filed with the English Central Authority, working with the father’s Ontario lawyer, swearing affidavits and disbursing funds for translation and career services.
The reasonableness or unreasonableness of each party’s behaviour
[13] I find that the father acted reasonably in this matter.
[14] The father submits that the mother’s conduct amounted to bad faith by her conduct. The conduct that concerns me is when the mother secretly tape recorded conversations with the father on March 23 and 25, 2015 with the hope of eliciting an admission by the father about the children staying in Canada. To the contrary, the transcript of these conversations reinforced the father’s position. This type of conduct by the mother was improper.
[15] With respect to the mother’s legal argument, I do not find that the mother’s actions or legal arguments can be equated to “bad faith” or being unreasonable behaviour. The mother’s position was supported by the Divisional Court decision in Balev until the Court of Appeal’s decision in September 2016. Once the Voice of the Child’s Report was obtained, the mother did not pursue the argument that the children’s objections were significant but she proceeded with her other arguments that ultimately I rejected.
The lawyer’s rates and disbursements
[16] The mother concedes that the rate of counsel for the father is reasonable. I find that the father’s counsel hourly rate of $280 an hour based on 25 years experience to be reasonable.
[17] The disbursement of $396.93 is reasonable.
[18] The disbursement of $1,742 for the Voice of the Child’s Report is also reasonable considering the expense confirmed that the children’s objections did not meet the legal threshold. While the mother incurred the same cost for the report, it was the mother who argued that the children did not want to go back to England. However, the report did not support the mother’s claims.
[19] The father also seeks the amount of $6,620 representing legal fees and disbursements for his English solicitors. The father has provided copies of a series of invoices from his English solicitors indicating that they have spent the equivalent of $6,620 in Canadian funds related to work under the Hague Convention. I have reviewed the accounts and note that the costs relate to a divorce, proceedings in England and the letter of opinion related to English law.
[20] The father also seeks the sum of $1,832 for his own flight, accommodation and car rental for the initial court hearing of November 14, 2016. I find that these expenses were necessary and reasonable and permissible expenses under section 26 of the Hague Convention
[21] The father was ordered to buy the tickets to return the children to England. He purchased three tickets at a cost of $2,450 for the mother and two children which included a flight from Ottawa to Toronto and then overnight to London. The mother, unilaterally, purchased her own tickets from Ottawa to London, being a direct flight at a cost of $4,723.98. My order did not grant the mother the right to select or change the flight purchased by the father. Further, the father is entitled to claim the cost of the flights as part of his cost submissions.
The time properly spent on the case
[22] Counsel for the father has provided a detailed bill of costs indicating that he spent a total of 77 hours from December 1, 2015 to January 16, 2017 totaling legal fees of $21,756 which include his cost submissions. The mother submits that approximately 8 hours of time were not related to this matter. The father argues that most of the time was related to confirming the mother’s request for a 1 or 3 year visa.
[23] Not all docketed time is reimbursable. I have the discretion to determine what is reasonable. I note that the mother has not provided her own bill of costs to be able to determine what she had spent in legal fees to allow me to compare. In any event, I find that 50 hours would be a reasonable amount of time to spend on this matter totalling $14,000.
[24] Regarding the claim for the father’s English solicitors, I do not have a breakdown of the time spent on each task. While I understand that proceedings were started in England, the email from Ms. Cox provided evidence of English law on the issue of custody. I find that $1,500 is reasonable.
Offers made
[25] On December 31, 2015, the father made an offer to settle that the children return to England, forthwith, that upon their return, the children are not to be removed without consent or court order and that the mother pay all travel costs to return the children to England (as was originally her obligation under the original agreement).
[26] The mother did not accept this offer and submits that the terms of the offer are more than my decision. I agree but on the central issue of the children returning to England, the father was successful. While the offer does not engage the costs consequences of Rule 18(14) of the Family Law Rules, I may still consider the offer in determining costs pursuant to Rule 18(16).
Other factors
[27] The mother submits that her financial circumstances should be considered and that she has no employment income, is reliant on her partner for support and has assets being the matrimonial home and a modest pension.
[28] While I have considered the mother’s financial position, her lack of resources is just one of the factors that I have considered. By September 2016, with the release of the Court of Appeal’s decision in Balev, the mother’s position was weakened but she continued to pursue the matter. Then, despite the results of the Voice of the Child’s report, the mother continued the litigation.
Disposition
[29] In this case, the mother signed an agreement to allow the children to move to Canada for a specific period of time. It was the mother who breached the agreement and then attempted to justify her actions. I rejected all of the mother’s submissions. Consequently, she must be responsible for her actions. Had the mother followed the agreement, none of the father’s costs would have been incurred.
[30] Taking all the above into consideration, I order the mother to pay to the father costs in the amount of $21,920.93 broken down as follows:
(a) the sum of $14,000 for legal fees for his Ontario counsel;
(b) the sum of $396.93 for disbursements;
(c) the sum of $1,742 for the Voice of the Child’s Report, which included HST,
(d) the sum of $1,500 for legal fees and disbursements for his English solicitors (subject to VAT);
(e) the sum of $1,832 for his own flight, accommodation and car rental for the initial court hearing of November 14, 2016 (purchased in England); and
(f) the sum of $2,450 for airline tickets for the mother and two children to return to England (purchased in England).
Shelston J.
Released: March 14, 2017
CITATION: Stacey v Stacey 2017 ONSC 1226
COURT FILE NO.: FC-15-2824
DATE: March 14, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mark Derek Stacey
Applicant
– and –
Karen Stacey
Respondent
costs endorsement
Shelston J.
Released: March 14, 2017