COURT FILE NO.: FC-16-272 DATE: 2017/05/17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tammy Marilyn Morey, Applicant AND Stephane Antoine Bisson, Respondent
BEFORE: Justice Marc R. Labrosse
COUNSEL: John Allan, Counsel, for the Applicant Ronald Paquette, Counsel, for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
The text of the original Costs Endorsement was corrected on May 17, 2017 and the description of those corrections are appended
Introduction
[1] This Costs Endorsement follows my decision dated November 21, 2016 where I granted the Respondent Father’s Motion for Summary Decision on a legal issue to dismiss the Application by the Applicant Maternal Aunt for custody, access, child support and for the appointment of the Children’s Lawyer on the basis that the courts of the Province of Ontario have no jurisdiction over the matter.
[2] The Applicant sought to have the Court assume jurisdiction of the custody, access and support issues involving these children pursuant to subsection 22(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), despite the fact that the children were habitually residents in the province of Quebec.
[3] The Respondent was the successful party on the motion and as such, there is a presumption that he is entitled to an award of costs pursuant to Rule 24 of the Family Law Rules, O. Reg. 114/99 (“FLRs”), subject to possible offers made by the parties and the other criteria discussed below.
[4] I indicated that if the parties were unable to resolve the issue of costs, they could provide written submissions. I have now considered these submissions prior to making my decision on costs.
Position of the Parties
[5] The Respondent claims that he was successful and is therefore entitled to the reimbursement of his costs. He further claims that the result obtained on the motion is more successful than his verbal offer made through counsel on May 6, 2016.
[6] The Respondent claims that he was more reasonable in his attempts to resolve the matter.
[7] The Respondent claims full indemnity costs in the amount of $10,041.86.
[8] The Applicant claims that at the time the Application was commenced, there were no active proceedings in the Province of Quebec and the children were residing in Ontario. It was therefore reasonable for her to commence these proceedings in Ontario.
[9] The Applicant also raises the issue of the Respondent’s efforts to have people contribute to his legal fees by starting a “go fund me” for which the Applicant demonstrates an initial amount of $210 collected. Neither this amount or the final amount raised was disclosed by the Respondent.
[10] The Applicant states that she acted in good faith throughout the proceedings and that her approach was to act in the best interests of the children.
[11] Finally, the Applicant states that she in receipt of social assistance and has no ability to pay a cost award.
Applicable Law on Costs
[12] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 has provided guidance to the courts in identifying the three fundamental purposes of the costs rules:
(1) to indemnify successful litigants for the costs of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.
[13] Further, Rule 2(2) of the FLRs adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. (See Blanchard v. Walker, 2012 ONCJ 799 at paras 15‑16).
[14] Where offers to settle have been made, Rule 18 of the FLRs provides that where a party makes an offer to settle and where the order is as favourable as or more favourable than the offer, the party who made the offer is entitled to full recovery costs from the date the offer was served provided the other requirements of the rule have been met.
[15] Rule 24(11) of the FLRs also calls for the consideration of the following factors:
(1) the reasonableness of each party, any Offers to Settle; (2) any acts of bad faith by any party; (3) the importance, complexity or difficulty of the matter; (4) the scale of costs; hourly rates and time spent; and (5) the reasonable expectations of the losing party.
[16] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. Of relevance here is Rule 24(5)(a) which requires that the Court shall examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.
Analysis
[17] The Court has considered Rule 24. There is no evidence before me that the Applicant acted unreasonably in pursuing this Application. There were no active proceedings in the Province of Quebec when the Application was commenced and following the death of the mother, the proceedings in the Province of Quebec were stayed without further explanation.
[18] The Applicant has clearly stepped up to try to assist these children at a time in their lives when the Respondent Father had ceased to exercise access and was not present in their lives. While the noble efforts of the Applicant are not a shield from an ill-conceived application for custody, support and access, they are factors in my mind which are properly part of the analysis on the quantum of costs which should be payable to the successful party.
[19] The verbal offer to dismiss the Applicant’s claim made through counsel does not in my mind give rise to the cost consequences of Rule 18. It is however a factor to consider under Rule 24(11).
[20] While the Respondent was successful on the jurisdictional issue, the Applicant would never had had to become involved to the extent that she did if the Respondent had not withdrawn from the lives of the children. He relied on the conflict with the mother to justify his withdrawal from their lives but this is not a valid excuse in my view.
[21] Prior to the death of the mother, the Respondent Maternal Aunt had been in a caregiving role with the children and it is not surprising that she attempted to give effect to the intentions of the mother in pursuing this Application.
[22] It is clear this is not a case for full indemnity costs. The total amount of fees is $8,575.20 plus HST and disbursements. The corresponding partial indemnity rate would be $5,659.63
[23] The assessment of costs is not a mechanical issue (see Boucher et al v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) at para 26). As stated by the court in Delellis v. Delellis, 2005 CarswellOnt 4956, at para 9 (Ont. S.C.): “The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.” See also Serra v. Serra.
[24] The above direction to find an amount that is fair and reasonable requires that I attribute significant weight to the actions of the Applicant which I have noted above. It is not surprising at all that she resisted against the Respondent’s return into the children’s lives and his efforts to remove them from the Ottawa-Gatineau area and have them move with him to Saint-Hyacinth after a lengthy period of no contact. She significantly contributed to the lives of the children and it would be overly punitive to require that she pay a significant amount of costs in her attempt to act in the best interests of the children.
[25] I exercise my discretion to fix the costs payable by the Applicant to the Respondent in the amount of $1,500 (inclusive of HST and disbursements).
Conclusion
[26] I thereby conclude that the Respondent is entitled to a costs award for the Summary Decision Judgment in the amount of $1,500 inclusive of taxes and disbursements and payable forthwith.
Justice Marc R. Labrosse
Released: 2017/05/17
COURT FILE NO.: FC-16-272 DATE: 2017/05/17
ONTARIO SUPERIOR COURT OF JUSTICE RE: Tammy Marilyn Morey, Applicant AND Stephane Antoine Bisson, Respondent
BEFORE: Justice Marc R. Labrosse
COUNSEL: John Allan, Counsel, for the Applicant Ronald Paquette, Counsel, for the Respondent
HEARD: October 11, 2016
COSTS ENDORSEMENT
Justice Marc R. Labrosse
Released: 2017/05/17
APPENDIX
Conclusion
[26] I thereby conclude that the Respondent is entitled to a costs award for the Summary Decision Judgment in the amount of $1,500 inclusive of taxes and disbursements and payable forthwith.