Court File and Parties

COURT FILE NO.: FC-12-1470-1 DATE: 2017/05/29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Timothy Campbell, Applicant AND Isabelle Lapierre, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Steve Duplain Counsel, for the Applicant Ashish (“ASH”) Duvadie Counsel, for the Respondent

HEARD: In writing

Costs Endorsement

[1] After an eight day trial, the Court ordered the following:

• both parents were awarded joint custody of the children with terms and conditions regarding the parenting of the children;
• neither party would attend the other party’s home without written consent of the other parent;
• emails relating to major decisions for the children such as health, education, religious upbringing or extracurricular activities shall be responded to within 72 hours;
• the parties would not contact each other directly or indirectly unless it pertained to the children;
• the parents would continue to meet at a neutral location for the exchange of the children;
• the Applicant father would have parenting time every second Thursday after school until Tuesday morning and sharing of holidays;
• the father will make the best efforts to bring the children to the daycare before 8 a.m.;
• the parenting arrangement will be reviewed by July 2019;
• commencing January 1, 2017, the father will pay child support table amount of $1,415 per month for the two children based on his annual income of $99,927;
• commencing June 1, 2017, the parties will exchange their most recent income tax returns and Notices of Assessment and child support and the division of s. 7 expenses will be adjusted in accordance with the Applicant’s previous year’s income retroactive to January 1st;
• the parents will share s. 7 and special extraordinary expenses proportionate to their respective incomes, which includes Building Blocks program and daycare expenses. The father will pay 57% of the expense and the mother will pay 43% of the expense. No expense for which contribution is sought will be incurred without first obtaining prior written consent from the other parent, which consent shall not be unreasonably withheld;
• the father will pay to the mother half of the Child tax credit in the amount of $632.50 by April 1, 2017;
• the father will pay to the mother the amount of $470 representing a reimbursement of daycare expense and shortfall with respect to coins by April 1, 2017; and
• the claim for a restraining order was dismissed.

[2] If the parties could not agree on the issue of costs, the parties were to provide written submissions.

[3] After considering the parties’ written submissions, bills of costs and various offers to settle, the Court finds that there has been divided success, hence the Court orders no costs.

Father’s Position

[4] The Applicant (father) is seeking partial costs in the amount of $20,000 inclusive of HST as he was the more successful party and that the Court’s decision more closely resembles the position he took at trial. In contrast, the Respondent (mother) sought sole custody of the children with more limited access to the father and a restraining order.

[5] The father’s offer to settle dated September 2, 2016 offered the following:

• joint custody;
• a requirement of 72 hours to respond to an email dealing with a major decision regarding the children;
• alternate weeks parenting schedule and sharing of holidays;
• no child support;
• he would reimburse her the amount of $632.50 for the Universal Child Benefit received on May 2012; and $470 for his share of the remaining equalization payment and daycare costs;
• if the offer to settle was accepted prior to September 14, 2016, no costs, after that date she would pay $10,000. It revoked all previous offers to settle (which includes the offers listed);
• it expired one minute after the commencement of the trial; and
• this offer to settle revoked all previous offers to settle.

[6] This offer to settle met the criteria of Rule 18(14) of the FLRs as the father signed the offer, it was dated and served on the mother at least 7 days before the trial commenced.

[7] The father also sent other offers to settle which were not open for acceptance at the time of the trial as they were revoked by the above offer to settle.

[8] The previous offers included one dated April 21, 2015 which offered:

• joint custody;
• if the parties could not agree on a major decision pertaining to the children within 72 hours of receiving notice, the mother would have final decision making authority;
• access would increase to every second Thursday to Tuesday morning;
• exchanges for access would take place at the children’s school;
• he would pay child support in the amount of $1,477 based on his annual income;
• the parties would have an annual exchange of tax returns;
• he offered to pay $1,265 for UCCB and $400 for half of property and $70 for daycare costs;
• if the offer was accepted prior to the settlement conference, the mother would pay costs in the amount of $4,000 and if accepted after the settlement conference, she would pay $8,000; and
• there would be no restraining order.

[9] The offer to settle dated September 23, 2014, offered joint custody, access as per separation agreement, i.e. every second Friday to Monday morning and $1,319 per month as child support.

[10] Another offer to settle dated December 3, 2014, offered joint custody, access the same as set out in the separation agreement and payment of the table amount of child support of $1,383 per month.

Mother’s Position

[11] The mother is seeking $55,000 based on a partial recovery basis.

[12] Her trial costs were $73,382.50. In addition, $10,987.03 were rendered by her previous counsel Mr. Lazarovitz for services rendered from April 9, 2013 to June 24, 2013.

[13] Master MacLeod (as he was then) reserved the costs of the conference to the trial Judge. The mother states that she was successful as the Court ordered the mother’s request for psychological support for the children.

[14] The father was not successful in his quest for 50/50 parenting time. The final court order supported her position that there should not be an increase of access to the children by the father.

[15] The father refused to provide his consent for baptism for 3 years until September 2016 thereby creating costs, wasting Court time and fuelling legal conflict.

[16] The mandatory 72 hour response to emails dealing with major decisions regarding the children was the mother’s proposal. The father’s proposal was 30 days as suggested by Dr. Weinberger’s report.

[17] Her December 3, 2014 offer to settle offered:

• joint custody;
• no changes to access from that stipulated in the separation agreement;
• exchange at the school or a public place and neither party attend the other party’s residence without the other party’s consent;
• child support of $1,383 per month payable by the father;
• sharing of s. 7 special and extraordinary expenses; and
• costs consequences if not accepted by a certain timeframe.

[18] In her September 8, 2016 settlement conference brief, the mother offered a return to the prior schedule as set out in the separation agreement, and sole custody with the mother having final decision making authority, the children could be baptized and there would be a 72-hours response time to a request regarding a joint decision pertaining to the child.

[19] Her bill of costs is not detailed. It indicates time spent of 181 hours at $250 per hour in the amount of $42,250 plus eight trial dates at $2,500 per day for $20,000 and disbursements of $1,339.36 inclusive of HST.

Legal Principles

[20] The following legal principles are applicable when determining costs in a family law matter.

[21] Firstly, costs are discretionary.

[22] Secondly, the Court is guided by the principles set out in Serra v. Serra, 2009 ONCA 395, at para. 8, where the Ontario Court of Appeal stated that the costs rules are designed for the following fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.

[23] Next, Rule 18(14) (15) and (16) of the Family Law Rules, O. Reg. 114/99 (the “FLRs”) sets out the factors and costs consequences for failure to accept an offer to settle. See below.

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. See Tyner v. Tyner, 2015 ONSC 6566.

[24] Also, guidance is found in the FLRs which govern cases in Family Court. Rule 24(11) of the FLRs sets out the factors the Court shall consider in its determination of costs.

[25] Finally, parties must ensure that they recognize the impact of Rule 24(10) of the FLRs which provides that:

(10) Promptly after dealing with a step in the case, the court shall, (a) make a decision on costs in relation to that step; or (b) reserve the decision on costs for determination at a later stage in the case.

[26] In Islam v. Rahman, 2007 ONCA 622, the Ontario Court of Appeal confirmed the following regarding Rule 24(10):

We accept the appellant's submission that the trial judge erred in failing to exclude from the award of costs amounts claimed for steps taken in the case where no order was made as to costs or where there was silence on the issue. Rule 24(10) of the Family Law Rules provides that the judge who deals with a step in a case shall decide who, if anyone, is entitled to costs. If a party who has served an offer to settle the case as a whole wishes that fact taken into consideration in relation to a particular step, it is incumbent on that party to raise that issue with the judge who deals with that step. In this case, various steps were taken (e.g. motions, conferences) in relation to which either there was an endorsement that there be no order as to costs or the issue of costs was not addressed. In the absence of a specific order for costs in favour of the Respondent, the trial judge should have disallowed costs claimed by the Respondent in relation to such steps.

[27] It is therefore incumbent on the parties that they deal with costs at each step of the litigation. Parties are not permitted to ask the trial Judge for all the costs incurred in the litigation.

Decision

[28] In considering who was successful, the Court must review the issues determined, the parties’ respective positions and offers to settle.

[29] I find that the most important issues were the issues of custody and parenting arrangements. These issues took up most of the Court time at the trial.

[30] Neither party was able to obtain an order more favourable than their offers to settle which meet the criteria of Rule 18 (14) of the FLRs.

[31] The mother was not able to obtain an order more favourable than her September 2016 offer, as she wished to reduce the father’s time with the children and obtain sole custody of the children.

[32] As well, the father did not obtain an order more favourable than his September 2016 offer as he offered equal parenting time with the children.

[33] However, pursuant to Rule 18(16) of the FLRs the Court can consider other offers to settle and settlement negotiations.

[34] It is clear that throughout the litigation, both parties made efforts to resolve this matter.

[35] In the early stages of the litigation, the parties were prepared to compromise on their positions. However, as the litigation continued the parties became more entrenched resulting in more litigation. In the spring of 2015, the father was anxious to increase his time with his sons.

[36] He brought two motions to increase time with his son. On the other hand the mother had to proceed to court to obtain an order for baptism for the children. The order was eventually obtained on consent.

[37] On September 22, 2016, the mother offered in handwriting “what is currently”. This does not meet the requirements of Rule 18 offers of the FLRs but the Court is prepared, pursuant to Rule 18(16), to accept handwritten notes if the offer is clear and the terms are comprehensible to be accepted. Here, the Court finds that the mother’s handwritten notes, purporting to be an offer, are not capable of being accepted as they are vague and uncertain.

[38] The same thing can be said with respect to the mother’s emails which state that she is prepared to compromise. Those emails do not constitute offers to settle. An offer must be clear and concise, and the receiving party must be able to discern exactly what is being offered to finalize the matter.

[39] On December 3, 2014, the mother offered joint custody but access as set out in the separation agreement, asked for the table amount of child support and s. 7 expenses and reimbursement of $1,265 plus $470. She was not successful on the parenting arrangements as the final order continued the access as per the interim order of Justice Lacelle of August 2015. This increased father’s access to every second weekend from Thursday after school to Tuesday morning.

[40] In regards to the case conference, the parties have not made any submissions as to the costs of the case conference, the length of time and why they are entitled to costs. Mr. Lazarovitz has only submitted his accounts with no bill of costs setting out the time he spent on the case conference brief, discussions with his client and attendance. The mother is saying that she spent approximately $10,000 at the case conference but a breakdown of time spent has not been provided.

[41] There is no clear winner of the settlement conference nor a clear articulation of the parties’ respective positions at the time and whether time and expenses were incurred needlessly by either party. It would be helpful to a trial Judge who is ultimately deciding costs of a previous hearing if the parties can fix costs for a specific hearing that can be allotted to a party who is the ultimate winner of the trial.

[42] Therefore, each party will bear the costs of the attendances at the case conference and settlement conference.

[43] In reviewing the factors set out in Rule 24 (11) of the FLRs:

Importance, Complexity or Difficulty of the Issues

[44] The parenting issue was very important to the parties. The trial was made complex by the testimony of two experts and numerous documents. The mother insisted on sole custody and a restraining order. The father consented to the baptism. The father’s request for shared parenting was deferred to a review based on the children’s special needs. The mother’s concerns regarding parenting, alcohol problems, lack of medical care, neglect of the children and allegations of domestic violence were not accepted by the Court.

The Lawyer’s Rates

[45] Both lawyers’ rates were reasonable.

Time Spent and Expenses Properly Paid

[46] The mother’s lawyer spent approximately 157.24 hours since June 2016 and does not include any conferences or motions. The total spent was over $30,000 plus HST. The father seeks partial indemnity of $20,000 inclusive of HST. Both parties’ disbursements were reasonable given the length of the trial.

[47] Therefore, there has been divided success and hence there will be no costs awarded.

Justice A. Doyle Date: 2017/05/29

Released: 2017/05/29 Madame Justice A. Doyle