Court File and Parties

COURT FILE NO.: FS-09-077 DATE: 2017/06/21 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: LORI DIANNE MOORE, Applicant AND: GLENN NORMAN MOORE, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Richard A. Wellenreiter, for the Applicant Renee M. Roy, for the Respondent

COSTS ENDORSEMENT

[1] The parties have been unable to resolve the question of costs and have each delivered written submissions on costs.

[2] The following is my disposition on the issue of costs relating to the respondent’s motion.

[3] Each party claims that she/he was successful on the motion and is therefore entitled to costs.

Positions of the Parties

(a) Position of the Applicant

[4] The applicant says that the respondent has failed to provide proper, adequate and timely disclosure regarding his changing residential situation and only did so in reply materials when the applicant raised the issue in her response to his motion seeking a “Voice of the Child Report”. She submits that the respondent’s failure to make full and fair disclosure is a fundamental factor to be considered in the making of a costs order. She also submits that her position that a more fulsome report than that proposed by the respondent in submissions consisting only of the views and preferences of the children, was both reasonable and necessary and was reflected in the court’s disposition. The applicant claims partial indemnity costs the sum of $4,697.45 plus $750 for the preparation of cost submissions. The partial indemnity costs of $4,697.45 reflects 60% of the applicant’s full indemnity costs comprising fees of $6,287.50, disbursements in the sum of $107.58 and HST on the fees in the sum of $817.38.

(b) Position of the Respondent

[5] The respondent points to his Offer to Settle served April 13, 2017 in which he offered to settle the motion on the basis that a “Voice of the Child Report” be completed privately through Mr. Ian DeGeer, on the basis that Mr. DeGeer shall also conduct parental interviews and review all court materials and pleadings in addition to interviewing the children, with further particulars to be “in his discretion given his expertise”. The Offer propose that the respondent pay the costs of the assessment in the first instance with the judge making the final determination having the ability to reapportion the costs. The offer further provided that if it was accepted by April 13, 2017 the parties shall each bear their own costs, and if accepted thereafter the cost shall be in the discretion of the presiding judge.

[6] The respondent submits that the terms of his offer were more favourable to the applicant than the order of the court. Although the respondent acknowledged that he had not initially contemplated such a fulsome report, he conceded it was appropriate when suggested by the applicant and articulated that in his Offer to Settle. The respondent submits that the applicant was still not satisfied with the respondent’s suggestion and forced the matter on for hearing in which she sought the same as that set out in the respondent’s Offer.

[7] The respondent seeks costs in the sum of $4,464.08 comprising partial indemnity costs in the sum of $2,389.58 from March 1 to April 13, 2017, inclusive of HST and disbursements, and full recovery costs and sum of $2,074.50 from and after April 13, 2017, including HST and disbursements. The latter figure comprises $1,787.50 in fees, HST on the fees in the sum of $232.38 and disbursements, including HST, in the sum of $54.62.

Guiding Principles

[8] Pursuant to subrule 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), 67 O.R. (3d) 181 (Ont. C.A.) at para. 42).

[9] Rule 18 deals with the impact of Offers to Settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that a party who makes an offer at least one day before the motion date, and obtains an order as favorable, or more favorable than the offer, is entitled to costs to the date that the offer was served and full recovery of costs from that date. Even if subrule (14) does not apply, the court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[10] 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] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, [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.

[11] 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).

[12] 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 ONSC 4229, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Analysis

[13] It is evident from a review of the parties’ costs submissions and, in particular, the respondent’s Offer to Settle served April 13, 2017 that the motion did not have to be argued.

[14] The parties were in agreement that an assessment should be carried out and that Mr. DeGeer should be engaged to conduct it. By the end of submissions the parties were not far apart, if at all, on the scope of the assessment, namely that it should include a review of the pleadings and proceedings and interviews with the parties, in addition to interviews with the children.

[15] The scope of the assessment which was ordered to be conducted reflected the position that the applicant took in response to the respondent’s motion. Although the respondent took a more restrictive approach initially, he did accede an approach calling for a more fulsome assessment as reflected in his Offer to Settle. It is unclear why the applicant chose not to accept the Offer which was reflective of her position. Acceptance of the Offer would have made final preparation and attendance to argue the motion wholly unnecessary. The respondent’s Offer to Settle was more favourable to the applicant than the order obtained. In my view there is no reason to depart from subrule 18(14) and the respondent is therefore entitled to full indemnity costs from and after his Offer to Settle. However, in my view he should not be entitled to any costs for the period prior to his Offer to Settle, as his position was that any assessment should be limited to ascertaining the wishes and preferences of the children, which was found not to be appropriate. Given the applicant’s unreasonable failure to accept the respondent’s Offer to Settle, it is not appropriate to award any costs to the her for the period prior to service of the Offer.

[16] There was no motion before the court in relation to disclosure by the respondent and accordingly I do not find the applicant’s submissions in that respect to be pertinent to the costs of the respondent’s motion relating to the assessment.

[17] In my view, the amount claimed by the respondent for costs from and after his Offer to Settle is fair and reasonable and reflects what should have been within the applicant’s reasonable expectations.

Disposition

[18] It is therefore ordered that the applicant pay to the respondent costs fixed in the sum of $2,074.50. This amount is to be paid within 30 days hereof.

D.A. Broad, J. Date: June 21, 2017