Court File and Parties
COURT FILE NO.: FS-15-83950-00 DATE: 2017 04 20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Emma Claudia Ferrara – and – Pier Luigi Carlos Bertolin
BEFORE: LeMay J.
COUNSEL: S. Bookman, Counsel for the Applicant S. Benmor, Counsel for the Respondent
HEARD: In writing
ENDORSEMENT
[1] This is a motion for leave to appeal the costs order of Bielby J. dated January 11th, 2017. The motions judge made his costs order after an appearance before him on December 9th, 2016. During the December 9th, 2016 appearance, the motions judge addressed the issue of access.
[2] After the December 9th, 2016 appearance, the motions judge sought and received costs submissions from the parties. Upon receiving these submissions, the motions judge reviewed them and determined that the Applicant should pay costs to the Respondent in the sum of $10,221.40, inclusive of HST and disbursements.
[3] The Respondent, in an Affidavit, alleges that there is no basis for leave to appeal to be granted in this case.
[4] The Applicant seeks leave to appeal the motions judge’s costs order to the Divisional Court. The Applicant asserts that the motions judge’s order does not take into account the fact that her offer to settle was closer to the result than the Respondent’s offer to settle. In addition, the motions judge made an Order that was disproportionate to the time spent on the motion.
[5] For the reasons that follow, I am denying leave to appeal the motions judge’s decision to the Divisional Court.
Facts
[6] The parties were married in June of 2009, and separated on June 20th, 2013. There is one child of the marriage, Sierra, who was born on March 6th, 2011. These proceedings were commenced in 2015, and there are issues of access, custody and support between the parties.
[7] In January of 2016, the parties were before Sproat J. who requested that the Office of the Children’s Lawyer become involved in this case. The OCL accepted this invitation and a report was prepared in July of this year.
[8] After the OCL report was served, there was a motion to address issues of custody and access. Each of the parties also sought to address additional issues relating to support and documentary disclosure. The motions were originally returnable on November 24th, 2016 before Tzimas J. She adjourned the motion to December 9th, 2016, and it proceeded before the motions judge.
[9] At the hearing on December 9th, 2016, the motions judge made the following Orders regarding access:
- Commencing January 4, 2017, the child shall be in the Respondent’s care from after school on Wednesdays to Thursday morning. The Respondent/Father is to pick up and drop off Sienna at her school.
- Commencing January 6, 2017, the child shall be in the Respondent’s care Friday after school until Saturday at 7:00 p.m., for 3 consecutive weekends, thereafter.
- Commencing January 21, 2017, the child shall be in the Respondent’s care alternate weekends from Friday after school, until Monday morning. The Respondent/Father shall pick Sienna up at school and drop her off at school.
- Sienna shall be in the Respondent’s care from Christmas Day at 2:00 p.m. until Boxing Day at 7:30 p.m. The parties are to share transportation. The child is to be with the Applicant/Mother Christmas Eve and for the first part of Christmas Day.
- The Respondent/Father shall not smoke in the presence of Sienna or in his home when he is exercising access.
- The Respondent/Father is to refrain from consuming any alcohol while exercising access and for 12 hours before access is to be exercised.
[10] The parties then filed written submissions on costs. Each side had provided an Offer to Settle. The motions judge determined that neither party had achieved a result that was as at least as good as the offer to settle that the party had served and, as a result, he proceeded to exercise his discretion to set costs.
[11] The Applicant now challenges the costs decision.
Analysis
a) The Test for Leave to Appeal
[12] The test for granting leave to appeal under the Family Law Rules is the same test as set out in the Rules of Civil Procedure. See, for example, Bergen v. Sharpe, 2011 ONSC 1930 at paragraph 39. This takes me to Rule 62.02 of the Rules of Civil Procedure.
[13] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.
[14] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).
[15] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).
[16] I will now consider how this test applies to the facts at hand. In doing so, I note that the Applicant has set out twelve separate grounds of appeal. She has also set out eight separate questions for the Divisional Court to consider in the event that leave is granted.
[17] In reviewing those grounds, I believe that they can be separated into three categories:
a) The motions judge erred in his assessment of the Applicant’s Offer to Settle, and erred in applying proper legal principles to the Offer to Settle. b) The motions judge erred in his analysis of the evidence on the motion, and on its application to the principles outlined in the Family Law Rules. c) The motions judge erred in his award of costs by making an award that was disproportionate to the amount of time spent on the access issue in this case.
[18] I will address these three issues in the sections on the application of each Rule.
b) Rule 62.02(4)(a)
[19] In order to meet the test under this provision of the Rules, the Applicant must demonstrate both that there is a conflicting decision and that it is desirable that leave be granted. In my view, the Applicant has failed to meet either branch of this test.
[20] The Applicant asserts that there are conflicts between the motions judge’s decision on costs because it creates “confusion” through its definition of successful, and that the amount of costs is entirely disproportionate to the singular issue of access that was argued before the Court. I disagree with both of these assertions.
[21] First, on the issue of confusion, I would note that costs awards are not ever going to be entirely consistent. Costs are a matter in the discretion of the individual judge, and each judge is entitled to exercise his or her discretion on the case before him or her. I fail to see how the exercise of discretion by a motions judge is going to create confusion in the law.
[22] As part of his argument on this issue, counsel expresses concern that the judge has misconstrued the word “successful” in deciding that the Respondent should be entitled to costs. On this point, I note that neither party met their Offer to Settle. As a result, deciding which party had success on the motion was something that was clearly within the motion’s judge’s discretion.
[23] This brings me to the Applicant’s concerns about the proportionality of the Order. On this point, I would note again that this was a matter of the exercise of judicial discretion. Further, in exercising his discretion, the motions judge explained the reasons for exercising his discretion in the manner in which he did. Finally, in terms of whether the costs were proportionate to the time spent, I have reviewed the Applicant’s costs submissions. In her submissions, the Applicant sought costs in excess of $24,000.00. It is difficult to see how an award to the other side of less than half of that amount is not proportionate.
[24] I have also reviewed the decisions that counsel for the Appellant has provided me, and I fail to see how any of these decisions are “conflicting decisions” in the sense that there is a conflict in the principles applied. Indeed, I fail to see any error at all in the motion judge’s reasons.
[25] Even if there were conflicting decisions, however, this is not a case where I would be of the view that it was desirable that leave to appeal be granted. Since costs is a matter of discretion, and this case was clearly decided as an exercise of that discretion, it would be difficult to extract issues of principle for an appellate Court to consider in this case.
[26] As a result, the motion for leave to appeal fails the first branch of the test.
c) Rule 62.04(4)(b)
[27] In order to meet the second branch of the test, the Applicant must establish that there is good reason to doubt the correctness of the motions judge’s Order, and that the proposed appeal involves matters of such importance that leave to appeal should be granted.
[28] In terms of the correctness of the Order, the Applicant states (at paragraph 17 of her factum):
60.02(4)(b) a) reason to doubt the correctness of the order – the Costs Order of Mr. Justice Bielby relies solely on the supposition that the Moving Party did not meet or exceed her offer on the basis that she failed to propose weekly overnight access to the Responding Party in accordance with the recommendations of the Office of the Children’s Lawyer. The learned Mr. Justice Bielby misapprehended the recommendations contained in the OCL report and failed to account for the fact that the Moving Party was in actuality proposing more access than recommended by the OCL clinical investigator.
[29] Even if the motions judge misapprehended the recommendations of the OCL in his reasons, it is clear from reviewing the Offers to Settle that the Applicant did not achieve a result as good as or better than her offer. Given that fact, I fail to see how a misapprehension on the recommendations in the OCL report would have significantly affected the motions judge’s determination on costs. As a result, I do not see any reason to doubt the correctness of the motions judge’s decision.
[30] In any event, even if there was reason to doubt the correctness of the decision this would not be a case that involved matters of such importance that the Divisional Court should consider them. As I have noted above, the fixing of costs is in the discretion of the trial judge.
[31] Finally, in terms of both parts of the test under Rule 62.04(4)(b), I would note that there is a longstanding principle in our law that costs determinations should only be set aside if the Judge has made an error in principle or if the costs award is plainly wrong (see Bellissimo Excavating Ltd. v. Ding). In other words, the test for granting leave on a costs decision is extremely high.
[32] I do not see such an error in this particular case. As a result, the Application also fails the second branch of the test and leave to appeal is denied.
Disposition
[33] For the foregoing reasons, leave to appeal the motions judge’s decision of January 11th, 2017 is denied.
[34] The Respondent’s costs submissions are due fourteen (14) calendar days from the release of these reasons, and are not to exceed two (2) double-spaced pages, exclusive of bills of costs, offers to settle and case-law.
[35] The Applicant’s costs submissions are due fourteen (14) calendar days from the date the Respondent’s costs submissions are received and are also not to exceed two (2) double-spaced pages, exclusive of bills of costs, offers to settle and case-law.
[36] There are to be no reply submissions without my leave. In the event that I do not receive costs submissions within the time lines set out above, I will presume that the parties have resolved the costs issues.