Jackson v. Jackson, 2017 ONSC 4540

CITATION: Jackson v. Jackson, 2017 ONSC 4540

COURT FILE NO.: D 22850/11

DATE: 2017/07/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmen Marie Jackson

Applicant

– and –

David Gordon Jackson

Respondent

Maria Lucarelli, counsel for the Applicant

Patricia Lucas, counsel for the Respondent

HEARD: June 26, 2017

THE HONOURABLE MADAM JUSTICE DEBORAH L. CHAPPEL

REASONS ON COSTS

PART I: OVERVIEW AND POSITIONS OF THE PARTIES

[1] On June 26, 2017, I heard submissions from counsel for both parties in this matter on the issue of costs in connection with the application herein, including the trial that occurred before me, as well as costs in relation to a Contempt motion which the Applicant brought on April 9, 2014. The Contempt motion proceeded on the basis of viva voce evidence, and the hearing spanned 9.5 days. The evidence on the motion commenced on June 23, 2014 and continued until July 3, 2014, at which time the motion was adjourned sine die to allow the parties to engage in reconciliation counselling to attempt to repair the relationship between the Applicant and the two children of the parties’ relationship, Jacob David Jackson, born December 23, 2004 (“Jacob”) and Carter Joshua Jackson, born May 6, 2008 (“Carter”). The Applicant brought the Contempt motion back on for a continuation of the hearing in December, 2015 and the hearing continued from December 7, 2015 until January 18, 2016. On May 30, 2016, I released Reasons for Judgment on the Contempt motion in which I dismissed the motion and reserved the issue of costs, to be dealt with at the same time as costs in connection with the application and the trial.

[2] The trial of the application was 23.5 days in duration. It commenced on December 10, 2015 and continued until August 22, 2016. I released my decision in relation to the trial on March 10, 2017.

[3] The Applicant seeks costs in connection with the application and the trial in the amount of $134,000.00, inclusive of legal fees, disbursements and HST. She submits that she is entitled to at least partial indemnity costs up until November 17, 2015, when she served an Offer to Settle (“the November Offer”) which the Respondent did not accept. Counsel for the Applicant argued that the terms of my final order dated March 10, 2017 were as favourable as or more favourable overall to the Applicant than the terms of the November Offer, and that the costs consequences of Rule 18(14) of the Family Law Rules, O.Reg. 114/99, as amended were therefore triggered. The Applicant accordingly seeks costs on a full recovery basis as of November 17, 2015. Alternatively, the Applicant states that she served a second Offer to Settle close to the conclusion of the trial, on June 16, 2016 (“the June Offer”), which she states also engaged the costs consequences set out in Rule 18(14). Her position is that at minimum, she should be awarded costs on a full recovery basis as of June 17, 2016, since the outcome of trial was overall much more favourable to her than the terms of the June Offer.

[4] The Applicant acknowledges that the Respondent was successful on the Contempt motion, and that he is therefore presumptively entitled to costs in connection with that motion. She requests that any costs ordered in relation to the Contempt motion be offset against the costs which the Respondent owes her in connection with the application and the trial. The Applicant accepts that the total fees and disbursements which the Respondent claims in relation to the Contempt motion, in the sum of $33,665.64, is reasonable. However, her position is that any costs award in relation to the Contempt motion should be calculated at most on a partial indemnity basis, in the amount of no more than $20,304.52. When this amount is set off from the costs which the Applicant claims in connection with the application and the trial, the total amount of costs which the Applicant claims is $113,695.48.

[5] The Respondent requests an order for costs on a full recovery basis in the amount of $33,665.64 in connection with the Contempt motion. At minimum, he seeks an amount somewhere between $20,000.00 and $30,000.00 in relation to the motion. The Respondent acknowledges that the Applicant was overall the more successful party at trial, and that she is therefore presumptively entitled to costs in connection with the application and the trial. However, he asserts that many of the costs which the Applicant has claimed are inappropriate, and that some of the claims are excessive. Furthermore, he disputes the Applicant’s assertion that the November and June Offers satisfy the requirements of Rule 18(14). His position is that any costs order in relation to the application and trial should be quantified on a partial indemnity basis only. Counsel for the Respondent suggested that any costs award against the Respondent in connection with the application and trial should not exceed $70,000.00, inclusive of HST and disbursements. Taking into account the offset which the Respondent claims in connection with the Contempt motion, the Respondent’s position is that any net costs award against him should not exceed $50,000.00.

[6] For the reasons that follow, I am ordering the Respondent to pay the Applicant a set-off amount of costs in the amount of $71,160.00.

PART II: THE LAW RESPECTING COSTS

I. General Principles

[7] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that subject to the provisions of an Act or Rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. Rule 24 of the Family Law Rules sets out a number of principles to guide the court in the exercise of its discretion.

[8] The Ontario Court of Appeal established in Serra v. Serra, [2009] O.J. No. 1905, 2009 ONCA 395, 2009 CarswellOnt 2475 (C.A.) that modern rules respecting costs aim to foster the following three 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.

[9] In seeking to advance these objectives, the court must balance the goal of indemnifying the successful litigant for their costs with the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome cost consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.)).

[10] The Court of Appeal has highlighted the discretionary nature of costs awards, and the importance of the court considering all relevant factors (Andrews v. Andrews, 1980 CanLII 3619 (ON CA), [1980] O.J. No. 1503 (C.A.)). It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M. (C.A.) v. M. (D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181; 2003 CarswellOnt 3606 (C.A.); Fielding v. Fielding, 2015 ONCA 901 (C.A.)).

II. Liability for Costs

[11] As noted above, Rule 24 of the Family Law Rules sets out additional principles and guidelines that apply in determining costs in Family Law proceedings. The Rule sets out a number of factors relevant to the preliminary issue of liability for costs. Rule 24(10) establishes the general principle that the court should determine the issue of costs promptly after each step in the case. If a specific order for costs is not made at the end of a step in the case, including a conference or motion, or costs are not reserved, a judge dealing with a subsequent step or the trial judge should not generally consider the costs associated with that step when determining costs (Islam v. Rahman, 2007 ONCA 622, 2007 CarswellOnt 5718 (C.A.); Bortnikov v. Rakitova, 2016 ONCA 427 (C.A.)).

[12] Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. The court may also award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that the court may consider appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)). If the parties have reached a negotiated resolution of the issues in their case, costs can nonetheless be ordered if the court determines that one party was more successful overall than the other party (Johanns v. Fulford, [2011] O.J. No. 4071 (S.C.J.)).

[13] Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly “divided” requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues that required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.)).

[14] Rule 24(4) provides that the presumption that a successful party is entitled to costs does not apply where that party has acted unreasonably, in which case that party may be deprived of all or part of their costs or may be ordered to pay the unsuccessful party’s costs. Rule 24(5) sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably. These factors include the party’s behaviour in relation to the issues from the time they arose, whether the party made an Offer to Settle, the reasonableness of any Offer to Settle that the party made, and any Offer to Settle the party withdrew or failed to accept. It is not any type of unreasonable conduct that will disentitle a successful party to costs. In the context of a custody and access dispute, a pattern of conduct which shows lack of respect for the letter and spirit of court orders or the relationship between a parent and child is the type of behaviour which should cause the court to seriously question the appropriateness of a costs award in favour of the successful party in a proceeding involving the child (Horne v.Crowder, 2015 ONSC 1041 (S.C.J)).

[15] Since costs are ultimately in the discretion of the court, a successful party may be denied costs for reasons other than unreasonable conduct (M. (C.A.)). In this regard, Rule 24 establishes additional presumptions regarding entitlement to costs that apply regardless of success. Rule 24(7) stipulates that if a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party “unless the court orders otherwise in the interests of justice.” A finding that a party has acted in bad faith will also result in liability for costs as against the offending party, regardless of that party’s success. Rule 24(8) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. This costs provision is subject to the general principle that costs claimed must be reasonable.

[16] Another important consideration in determining both entitlement to and the quantum of costs is whether or not any party has served an Offer to Settle. Rule 18(14) establishes costs consequences for failing to accept an Offer to Settle that complies with the requirements of that Rule. In order for these costs consequences to come into play, the Offer to Settle must be signed by the party making the offer and their lawyer. Failure to comply with this requirement may result in the offer not being a valid formal offer that attracts the consequences outlined in Rule 18(14) (Riss v. Greenhough, 2003 CarswellOnt 1450 (S.C.J.); Jakubowski v. Kopacz-Jakubowski, 2008 CarswellOnt 2149 (S.C.J.)). The costs consequences, and conditions precedent to these consequences, are set out in Rule 18(14) as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

Rule 18(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.

[17] With respect to the requirement that the order obtained be as or more favourable than the Offer to Settle, the court is not required to examine each term of the Offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. Rather, what is required is a general assessment of the overall comparability of the Offer as contrasted with the order that was ultimately made (Sepiashvili v. Sepiashvili, 2001 CanLII 25708 (ON SC), 2001 CarswellOnt 3459 (S.C.J.), additional reasons to 2001 CarswellOnt 3316 (S.C.J.); Wilson v. Kovalev, 2016 ONSC 163 (S.C.J.); Jackson). Where the Offer to Settle is not severable, however, the costs consequences set out in Rule 18(14) should only be applied if the judgment is on a general, overall comparison as or more favourable on all issues (Heon v. Heon, 1989 CarswellOnt 318 (Ont. H.C.); Coscarella v. Coscarella, 2000 CarswellOnt 146 (S.C.J.)).

[18] In deciding both liability for and quantum of costs, the court may also take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply (Rule 18(16)). In this regard, the court may in the exercise of its discretion compare portions of the Offer to Settle dealing with discrete issues to the terms of the order. A party’s failure to serve an Offer to Settle may also be viewed as an adverse factor in determining the issue of costs (M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510 (O.C.J.)).

[19] The fact that the parties have settled all or some of the issues in the case will also be relevant to the determination of costs liability and the quantum of any costs ordered. Settlement is often a by-product of reasonable behaviour and litigation expectations. Accordingly, the court should be hesitant to order costs when the parties have reached a resolution of their dispute, unless there are compelling reasons to do so (Talbot v. Talbot, 2016 ONSC 1351 (S.C.J.)).

[20] The circumstances discussed above are not the only ones which may give rise to costs liability. The decision respecting liability is ultimately a discretionary one that must take into consideration the overall conduct of the parties and all of the circumstances and dynamics of the case.

III. Quantum of Costs

[21] Once liability for costs has been established, the court must determine the appropriate quantum of costs. In Serra, Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), 2005 CarswellOnt 189 (C.A.), the court set out the additional general principles relating to the quantum issue:

1. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.

2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.

3. Amounts actually incurred by the successful litigant are not determinative.

4. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration

(See also Selznick v. Selznick, 2013 ONCA 35 (C.A.); Delellis v. Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345 (S.C.J.); Hackett v. Leung, 2005 CanLII 42254 (ON SC), [2005] O.J. no. 4888 (S.C.J.)).

[22] Polowin, J. commented on these general principles respecting the quantification of costs in Sommerard v. I.B.M. Canada Ltd., 2005 CanLII 40140 (ON CA), [2005] O.J. No. 4733 (S.C.J.). She succinctly captured the essence of the quantification exercise based on the principles outlined above as follows, at paras. 53-59:

The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectation of the losing party.

[23] Rule 24(11) prescribes some of the factors which the court should consider in deciding the appropriate quantum of costs. These factors include the following:

FACTORS IN COSTS

24 (11) A person setting the amount of costs shall consider,

(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 witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[24] In considering the quantum of costs, the court should also consider Rule 1(8), which provides that the court may respond to a failure to follow the Rules or abide by an order by making an order for costs.

[25] In determining the appropriate quantum of costs, the court has an obligation to review the specifics of the costs claim to assess the reasonableness of the amounts requested and whether items claimed are properly the subject of a costs award (Donnelly v. Donnelly, 2004 CarswellOnt 2076 (S.C.J.)). The court must also consider whether the hours spent can be reasonably justified (Pagnotta v. Brown, [2002] O.J. No. 3033 (S.C.J.); Murphy v. Murphy, 2010 ONSC 7204 (S.C.J.); Jackson). However, this analysis should be undertaken in a global fashion. The court is not required to embark upon a painstaking, line-by-line analysis of Bills of Costs and second guess every hour and item claimed, unless there are clear concerns about excessive claims and overreaching (Docherty v. Catherwood, 2016 ONSC 2140 (S.C.J.), at para. 50).

[26] In deciding the quantum of costs, the court should consider Rule 24 in conjunction with Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly (Mooney v. Fast, 2013 CarswellOnt 15659 (O.C.J.)). In addition, the principle of proportionality must be brought into the fold of the costs analysis. As Pazaratz, J. stated in Jackson, the Supreme Court of Canada recognized in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7 (S.C.C.) that timeliness, affordability and proportionality are essential components of a legal system that ensures true access to justice. In the context of the costs analysis, these factors require the court to ensure that expenses claimed make sense having regard for the importance and complexity of the issues that were litigated.

[27] Where the court concludes that a party has acted in bad faith, Rule 24(8) directs the court to order costs against that party on a full recovery basis, payable immediately. The full recovery portion of the award should relate to the issues affected by the bad faith. Once the full recovery analysis is complete with respect to those issues, the court should assess costs in relation to the other issues by considering the overall circumstances of the case in light of the factors outlined in Rule 24(11), and should use the discretion permitted by that section to reach a correct overall result (Hunt v. Hunt, 2001 CarswellOnt 4548 (S.C.J.); Likins v. MacKenzie, 2003 CarswellOnt 3007 (S.C.J.); additional reasons at 2004 CarswellOnt 2157 (S.C.J.)).

[28] As previously noted, Rule 18(14) relating to formal Offers to Settle is also relevant to quantum of costs. If an Offer to Settle does not meet the formal requirements of Rule 18(14), the court may nonetheless take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms (Rule 18(16)). A party’s failure to serve an Offer to Settle may also be viewed as an adverse factor in determining the quantum of costs (M. (J.V.)). This is so even if the party was the successful litigant (Smith v. Smith, 2007 CarswellOnt 1538 (S.C.J.)).

[29] The costs consequences set out in Rule 18(14) do not automatically apply when the requirements set out in the Rule are satisfied. The Rule simply establishes a rebuttable presumption regarding costs, and the court ultimately maintains the discretion to determine whether the costs consequences are appropriate having regard for all of the circumstances of the case (M.(C.A.); Cole v. Freiwald, 2011 CarswellOnt 10517 (O.C.J.)).

[30] Although not specified in Rule 24(11) as factors in determining costs, the financial means of the parties, their ability to pay a costs order and the effect of any costs ruling on the parties and any children are also relevant considerations in reaching a determination on the issue of costs, both under Rule 24 and Rule 18(14) (Tauber v. Tauber, 2000 CanLII 5747 (ON CA), [2000] O.J. No. 2133; additional reasons at 2000 CanLII 22280 (ON CA), [2000] O.J. No. 3355 (C.A.); Biant v. Sagoo, 2001 CanLII 28137 (ON SC), [2001] O.J. No. 3693 (S.C.J.); Van Rassel v. Van Rassel, 2008 CanLII 56939 (ON SC), [2008] O.J. No. 4410 (S.C.J.); M.(C.A.); Murray v. Murray, 2005 CanLII 46626 (ON CA), [2005] O.J. No. 5379 (C.A.); Clark v. Clark, 2014 ONCA 175 (C.A.)). The financial means of a custodial parent may be particularly relevant in assessing costs if a costs award would indirectly impact a child in a negative fashion. As the Ontario Court of Appeal stated in M. (C.A.), at para. 42, “[i]n fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.” However, ability to pay will typically only be relevant to the appropriate quantum of costs and how payment should be effected, and not to the issue of liability for costs (Izyuk v. Bilousov, 2011 ONSC 7476, 2011 CarswellOnt 14392 (S.C.J.)). In addition, a litigant’s limited financial means will be given less weight in the costs analysis than the court’s determination regarding overall success in the litigation (Biant; Gobin v. Gobin, 2009 CarswellOnt 3452 (O.C.J.)). Furthermore, ability to pay alone cannot override the other factors set out in Rule 24(11) (Peers v. Poupore, 2008 ONCJ 615 (O.C.J.)). A party’s limited financial means will also be accorded less weight if the court finds that the party acted unreasonably. As Curtis, J. stated in Mooney, “[i]t must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court.”

[31] One of the measures that the courts use in determining whether costs claimed are fair, reasonable and proportional is to consider the amount that the other party has paid for their own legal fees with respect to a matter (Durbin v. Medina, 2012 ONSC 640 (S.C.J.)). A significant discrepancy in the amount of fees that the parties have incurred may prompt the court to embark upon a more detailed scrutiny of the costs claimed to ensure that the amount meets the overall objectives of a cost order (Jackson, at para. 99).

[32] In cases involving custody and access claims, a more tempered approach to costs may be appropriate depending on the circumstances of the case. The rationale for this is that parties should not be discouraged from advancing bona fide custody or access claims that are meritorious out of fear of possible deleterious financial consequences (Weaver v. Tate, 1989 CarswellOnt 330 (H.C.)).

[33] The Ontario Rules of Civil Procedure refer to three “scales” or “ranges” for costs award, namely “partial indemnity costs,” “substantial indemnity costs” and “full indemnity” costs. The Family Law Rules do not make reference to these scales, but adopt the phrase “full recovery” costs as being the appropriate award in certain situations. The civil and Family Law Rules do not include definitions for any of these terms. While the Family Law Rules do not refer to the terms “partial” “substantial” and “full” indemnity, many judges determining the issue of costs in Family Law matters refer to the ranges used in the civil context in exercising their discretion regarding costs. While reference to these scales may provide guidance in deciding costs in Family Law litigation, it is not required under the Family Law Rules or by the case-law. In Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (S.C.J), Aston, J. held that the concept of scales of costs that applies in the civil context is not the appropriate way to quantify costs under the Family Law Rules. In his words, “[h]aving determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery. The Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs.” The Ontario Court of Appeal supported this approach in M.(C.A.) In Costa v. Perkins, [2012] O.J. No. 2400 (Div. Ct.) the Ontario Divisional Court cited M.(C.A.) as support for the proposition that the Family Law Rules have eliminated the usual scales of costs that are relied upon in civil matters.

[34] With respect to the term “full recovery” costs referred to in the Family Law Rules, there has been some discussion about whether this phrase refers to the full amount which a party claims, subject to adjustments based on reasonableness, or something between the full amount claimed and the concept of “substantial indemnity.” (See Mary Jo Maur and Nicholas Bala, “Re-thinking Costs in Family Cases: Encouraging Parties to Move Forward,” paper presented at the National Family Law Program, July 2014, Whistler, British Columbia.). In my view, the term “full recovery” refers to the full amount which the party has claimed, subject to any adjustments that the court considers appropriate based on the reasonableness and proportionality of the costs claimed. In other words, it means the total reasonable and proportional amount that a court determines the party should have spent in dealing with the case (Jackson, at para. 91). This conclusion accords with the case-law in the civil context which has interpreted the phrase “full indemnity costs.” (Toronto Standard Condominium Corporation v. Baghai Development Ltd., [2012] O.J. No. 2746 (C.A.)). While the Family Law Rules outline certain circumstances in which full recovery costs are appropriate, the court is not limited to making a full recovery award in those specified situations (Sims-Howarth). It is ultimately a matter of the court’s discretion to determine whether full recovery is appropriate having regard for the particular circumstances of the case.

PART III: ANALYSIS

I. COSTS IN RELATION TO THE APPLICANT’S CONTEMPT MOTION

A. Entitlement

[35] I turn first to the Respondent’s costs claim in connection with the Contempt motion. I find that the Respondent is entitled to costs of that motion. As I have indicated, I released Reasons for Judgment on May 30, 2016 in which I dismissed the motion. The Respondent was entirely successful on the motion and is therefore presumptively entitled to costs. There are no factors supporting a denial of costs despite his success. The motion was extremely serious in nature, given the implications of a contempt finding for any potential future Family Law proceedings and the possibility of imprisonment as a sentence for contempt. Accordingly, the Respondent had no choice but to vigorously defend the motion.

[36] The Respondent did not exhibit any bad faith in relation to the Contempt motion. The Applicant’s primary theories in advancing the motion were that the Respondent had alienated the children from her and had deliberately “set her up” to look like a bad parent by manipulating the criminal and child protection systems in his favour. I concluded that the Respondent was overly protective and did not give sufficient consideration to the progress that the Applicant had made in addressing parenting concerns, but I did not accept the Applicant’s theories about parental alienation and being set up by the Respondent. I am also satisfied that the Respondent conducted himself reasonably in connection with the motion. He only called one witness and did not engage in any litigation conduct that had the effect of prolonging the hearing. The Applicant argued that the Respondent took an unreasonable position in requiring staff from Pathstone to testify rather than simply allowing their notes to be admitted into evidence as business records. I disagree. The evidence of Pathstone staff was critical to the issue of whether the Respondent was in contempt, and their oral evidence and cross examination clarified many important points that could not have been properly determined through the notes alone.

B. Quantum of Costs

[37] With respect to the appropriate quantum of costs in relation to the Contempt motion, I have broken the analysis down into two separate periods. These periods are from June 23, 2014 until December 7, 2015, and from December 7, 2015 onward when the Contempt hearing resumed following a year of reconciliation counselling with Ms. Hall. With respect to the first period, I have determined that the Respondent should be reimbursed for 75% of his reasonable total costs. The total fees and disbursements incurred during this period were $20,267.60, not inclusive of HST, and 75% of this amount is $15,200.70. I have reviewed the Bill of Costs that counsel for the Respondent prepared, and I find that the amounts claimed are all fair and reasonable. The rate which Ms. Lucas charged was appropriate given her year of call, her expertise and the seriousness of the motion. I do not have concerns about excessive amounts of time having been spent. I note that the hearing of the motion spanned over 9.5 days.

[38] In carrying out the costs analysis for the first period under consideration, the following factors contributed to my decision not to order more than 75% of the costs claimed:

1. First, I made an order at the outset of the trial of this matter that all of the evidence adduced at the hearing of the Contempt motion would be admissible as well for the purposes of the trial. As I will discuss in further detail below, the Applicant was the successful party at trial and is entitled to costs in relation to the trial and the application. The fact that all of the evidence in the Contempt motion was admitted for both the trial and the motion supports a costs award in the motion at less than a substantial indemnity rate for the period under consideration.

2. Although I rejected the Applicant’s position that the Respondent had engaged in alienating and manipulative behaviour in relation to the custody and access issues, I did find that he was overly cautious in progressing with access, unreasonably opposed a motion by the Applicant for supervised access in April 2013, and did not move as quickly as he should have in arranging access at Pathstone in late 2013. In addition, I found that he actively undermined the reconciliation process by opposing increases in the Applicant’s access time, despite the positive evidence regarding her visits.

3. As I indicated in my Reasons for Judgment in the Contempt motion, the children’s resistance to access with the Applicant in early 2014 was not necessarily attributable solely to anxiety about renewing contact with their mother. Jacob and Carter underwent many emotionally upsetting experiences following the parties’ separation apart from the loss of contact with their mother, including several residential changes, the breakdown of the Respondent’s relationship with Ms. Nielson, the resulting loss of contact with Ms. Nielson’s children and involvement in the criminal law system. The Respondent failed to actively seek out therapeutic assistance for the children to work through these issues and to cope with the abrupt exclusion of their mother from their lives after she was charged with assault against Jacob in April 2012. When the children began to show stronger resistance to access in March 2014, he simply took the position that the children did not want to go rather than seeking out counselling services to assist them in processing their feelings and working towards a resolution of the situation that would foster a reconciliation between the children and their mother. If he had taken this type of action, there is a strong likelihood that the access impasse could have been resolved.

[39] There are a number of factors that informed my decision to award 75% of the Respondent’s total costs rather than a lower amount. These are as follows:

1. The total amount of time claimed for the motion is very reasonable in light of the seriousness and complexity of the proceeding. It is clear that Ms. Lucas did not include all of the time that she spent in connection with the motion. By way of example, there is no time included in the Bill of Costs for preparation for the continuation of the hearing in December 2015, or for preparation for additional Closing Submissions on January 18, 2016.

2. As I indicated in my Reasons for Judgment on the Contempt motion, the Applicant failed to pursue several less drastic alternatives to resolve the impasse respecting access. The most appropriate course of action would have been to bring a motion for an order requiring the parties to engage in therapeutic reconciliation to repair the relationship between the Applicant and the children. This was the ultimate outcome of the first stage of the Contempt hearing, and the reconciliation counselling with Ms. Hall resulted in the Applicant being able to resume a relationship with Jacob and Carter after almost 22 months of no contact.

3. With respect to one of the alleged incidents of contempt relating to the visit scheduled for March 1, 2014, I made an order on June 30, 2014 dismissing the alleged contempt outright on the basis that the allegation was clearly without merit.

4. The Applicant’s unfounded theory that the Respondent had deliberately set her up by actively involving police, hospital staff and child protection staff to create a case against her contributed significantly to the very protracted nature of the Contempt hearing.

5. The Applicant’s insistence that the children began to actively resist access with her solely due to parental alienation by the Respondent also contributed to the lengthy nature of the hearing. As I discussed at length in my Reasons for Judgment, there were many dynamics at play that appeared to explain the children’s feelings when access stopped in March 2014, not the least of which were the history of concerns respecting the Applicant’s parenting and the fact that the Applicant moved too quickly to increase access and resume an equal parenting role in the children’s lives.

[40] A different approach to the quantification of costs is appropriate for the period from December 7, 2015, when the Contempt hearing resumed after a hiatus of almost 1.5 years, until the conclusion of the hearing on January 18, 2016. I am awarding the Respondent full indemnity costs of $9,525.00 for this period on the basis that it was extremely unreasonable and unproductive for the Applicant to revive and push forward with the Contempt motion. The hearing had been adjourned on July 3, 2014 to allow the parties to engage Ms. Hall and participate in reconciliation counselling. The reconciliation process had resulted in the Applicant progressing from no access with the children to one overnight visit each weekend by December 2015. While the Applicant clearly wished to have more time with the children, the trial was scheduled to proceed and that was the most appropriate route by which to obtain more time with the children. In addition, the Ontario Court of Appeal had released its decision in Fiorito v. Wiggins, 2015 ONCA 729 (C.A.) on October 30, 2015, in which it clarified that the civil contempt remedy is only available to enforce an order that is live and operative when the contempt finding is made. In this case, all of the orders that were the subject of the Contempt motion had been completely superseded by the temporary order dated July 3, 2014, which provided for access to the Applicant as considered appropriate through the reconciliation process. In light of the court’s decision on this point in Fiorito, it was clear that the Applicant’s case could not succeed.

[41] Based on the foregoing, the Respondent is entitled to total costs and disbursements in relation to the Contempt motion in the amount of $24,725.25. Inclusive of HST, the total award in favour of the Respondent is $27,939.59. This sum will be rounded up to $27,940.00.

II. COSTS IN RELATION TO THE APPLICATION AND TRIAL

A. Entitlement

[42] I turn now to the issue of costs in connection with the application and the trial. The Applicant was overall the more successful party at trial, and is therefore presumptively entitled to costs. The custody and access issues were by far the primary focus of the trial and took up most of the trial time. On these issues, I accepted the Applicant’s position that a divided parallel parenting order and equal time-sharing were in the children’s best interests. There was mixed success on the child support issues. The Applicant was required to make retroactive adjustments to the child support she had paid while the children were in the Respondent’s primary care, and to contribute to some past s. 7 expenses. In addition, her position respecting security for support did not prevail. However, she was successful on all other child support issues. She was granted ongoing child support on a set-off basis, and she was also successful in defending claims that the Respondent advanced seeking reimbursement for withdrawals from RESP accounts and for medical and dental expenses that he had incurred. In addition, she was not required to contribute to any ongoing extracurricular expenses for the children or to any child care expenses of the Respondent. The Applicant was also the successful party on the issue of spousal support. The Respondent sought an order terminating spousal support effective December 31, 2015. The Applicant indicated that she would forego ongoing spousal support in the event that she was granted equal time-sharing and a set-off amount of spousal support, and that is the order that I ultimately made.

[43] There are no factors in this case that rebut the presumption that the Applicant is entitled to costs. There was no suggestion that the Applicant acted in bad faith. As I will discuss in further detail below, the Applicant took unreasonable positions and engaged in unreasonable conduct at certain stages of the litigation. These considerations have influenced my decision on the quantum of the costs award that she will receive. However, I am not satisfied that her positions and conduct over the entire course of the litigation were so problematic as to disentitle her to costs.

[44] On the issue of entitlement, I have also considered the fact that the Applicant served two Offers to Settle during the latter stage of the litigation. By doing so, she demonstrated a genuine effort to resolve the issues without a costly and protracted trial. As I will address in greater detail below, the November Offer did not satisfy the requirements of Rule 18(14) so as to engage the cost consequences of that Rule. However, the custody and time-sharing terms were very similar to those that I ultimately ordered following the trial. For the reasons discussed below, the June Offer did satisfy the requirements of Rule 18(14). This conclusion creates a second presumption in favour of entitlement to costs in the Applicant’s favour.

B. Quantum

1. January 2011 until October 2013

[45] The litigation in this case spanned a period of more than 5.5 years and went through several phases. I have broken down the analysis respecting quantification of costs into three periods due to the specific dynamics and events that developed during each phase. The first period I will focus on is from January 2011, when the Applicant issued her application, until October 2013, when the Crown withdrew the assault charge against the Applicant and supervised access became available to the Applicant through Pathstone. For the reasons that follow, I have declined to grant the Applicant costs in connection with this period.

[46] My decision to deny the Applicant her costs for the first period is based largely on the position that the Applicant took on the custody and access issues during the early stage of the litigation and the strength of the evidence in support of her position. The Applicant initially pursued joint custody, primary residence and access to the Respondent during the early phase of the litigation. Although the Office of the Children’s Lawyer Clinical Investigator who was assigned to the file, Ms. Montour, recommended a temporary order for joint custody and primary residence to the Applicant, she concluded that the matter should be reviewed after six months. Her recommendation for a review was based in large part on a number of significant concerns regarding the conflict between the parties, the Applicant’s parenting, the Applicant’s excessive consumption of alcohol around the time of the separation and her poor emotional functioning and impulse control. As I discussed at length in my Reasons for Judgment following the trial, there were indeed many concerns regarding the Applicant during the early stages of the litigation. In particular, I found that the Applicant had experienced substance abuse issues and significant anger management difficulties, and that she had resorted to inappropriate disciplinary methods with the children. I also concluded that the Applicant had on many occasions engaged in inappropriate conduct towards the Respondent in regard to the custody and access issues, including unilaterally withholding access and sending abusive texts messages to him. In my view, the evidence when considered as a whole did not strongly support the relief that the Applicant was requesting during the initial phase of the litigation. Rather, it pointed to an equal time-sharing arrangement as being the best case scenario for the Applicant.

[47] Another important consideration that informed the costs analysis for the period from January 2011 until October 2013 was the fact that the Applicant was charged with assault against Jacob in April 2012. On this issue, I concluded that the Applicant had struck Jacob on the head with a metal popcorn bowl with sufficient force to cause the child physical harm. As I noted in my Reasons for Judgment in relation to the trial, this unfortunate development dramatically changed the landscape of this case. From that time until October 2013, a considerable amount of the work respecting the custody and access issues related to the fallout from the charge. In addition, time was incurred on a motion that the Applicant brought for supervised access in April 2013, and the Applicant obtained an order for supervised access at Pathstone. However, as it turned out, this order was of little value until October 2013, since Pathstone refused to provide supervised access services to the family until the criminal charge was resolved.

[48] Although child support had to be addressed during the early part of the litigation, the parties were able to resolve this issue very quickly on a temporary basis at the case conference on May 11, 2011. Child support was again addressed in the context of a motion before Maddalena, J. on July 5. 2012, after the children were placed in the care of the Respondent. After hearing argument on the child support issue, Maddalena, J. ordered the Applicant to pay child support in the amount of $333.00 per month. However, she also made an order that there would be no costs payable in connection with the motions that she heard on that date. During a subsequent contested hearing on the child support issue on May 31, 2013, the Applicant was successful in having her child support obligation reduced to $50.00 per month. Maddalena, J. once again addressed the issue of costs at that time and made an order that there would be no costs payable by either party. The parties were eventually able to negotiate a final resolution of all child support issues up to and including December 31, 2015 through Minutes of Settlement that were incorporated into a final order on December 11, 2015.

[49] The issue of spousal support was also resolved on a temporary basis during the hearing of the motions before Maddalena, J. on July 5, 2012. The Respondent was ordered to pay spousal support in the amount of $509.00 per month. Again, the issue of costs was fully addressed at that time, and no costs were ordered in connection with the spousal support issue. The Respondent was subsequently unsuccessful in a motion which he brought to terminate spousal support, but Maddalena, J. declined to order costs in her Reasons relating to this motion dated May 31, 2013. The parties ultimately resolved all retroactive spousal support issues along with the child support issues pursuant to the Minutes of Settlement that they executed and filed on December 11, 2015.

[50] The parties also addressed various property issues from June 2011 until October 2013, including payment of expenses relating to the matrimonial home, division of household contents, equalization of net family properties and possession of the home. I find that both parties engaged in unreasonable conduct in relation to the property issues. They both contributed to challenges in dividing household property, resulting in considerable communication between counsel and court proceedings to resolve the issues. The Respondent engaged in bullying tactics with respect to carrying costs for the matrimonial home while the Applicant was in the home. The Applicant took steps to amend the application to pursue a constructive trust claim respecting the matrimonial home but then abandoned this claim. Possession of the matrimonial home also became a major source of contention. The Respondent’s relationship with his new partner broke down, precipitating a housing crisis for him in 2012. He responded by bringing a motion for exclusive possession of the matrimonial home in January 2013. The Applicant actively opposed this request, even though she did not have the children in her care, but then ultimately consented to the order on the date of the hearing. The issue of costs in relation to this issue was addressed in the order dated January 4, 2013. The parties were ultimately able to resolve all of the property-related issues through orders dated January 4, 2013, April 24, 2013 and December 10, 2015. The December 10, 2015 order which the parties consented to required the Applicant to return a number of items to the Respondent. Overall, I conclude that the Applicant’s conduct in relation to property issues was more unreasonable than that of the Respondent.

2. October 2013 until June 15, 2016

[51] The second period that I have considered for the purposes of quantifying costs is from October 2013, when Pathstone confirmed that it could begin supervised access for the Applicant, until June 16, 2016, when the Applicant served the June Offer. For this period of time, I have determined that the Respondent should pay 75% of the Applicant’s reasonable total costs.

[52] As a starting point for the analysis of this period, I have considered the Applicant’s Bill of Costs to determine whether there are any concerns about the amounts claimed. The total claim on account of legal fees during this period is approximately $86,775.00. From this amount, I have made the following adjustments to reach a figure that I consider to be reasonable in the circumstances:

1. I have deducted the sum of $630.00 on account of communications and meetings between Ms. Lucarelli and the Applicant’s former counsel Mr. Corbett, as well as the cost associated with serving and filing a Notice of Change in Representation. Although the Applicant had to change counsel through no fault on her part due to Mr. Corbett’s retirement, it is not appropriate to saddle the Respondent with the additional costs associated with the change of representation.

2. I have deducted the sum of $180.00 on account of the attendance at Assignment Court on April 8, 2014, given that the Applicant was the party who sought an adjournment of the trial on that date.

3. I have deducted the sum of $210.00 that was claimed on account of work on the Trial Record and summonses to witnesses in December 2014. The trial did not proceed at that time because the reconciliation counselling had been ordered in July 2014 and Ms. Hall’s involvement was still in the early stages. Counsel for the Applicant should have addressed the feasibility of the trial proceeding at that point before incurring these expenses.

4. The Applicant claimed $450.00 in relation to research carried out in November 2015 regarding the admissibility of case worker notes. I am deducting this amount because I did not accept the Applicant’s request that Pathstone notes be admitted into evidence.

5. I have excluded a claim dated November 27, 2015 of $60.00 and a claim dated December 4, 2015 of $22.50 relating to retroactive support research and calculations, since this issue was resolved pursuant to the Minutes of Settlement that the parties executed and filed on December 11, 2015 which required the Applicant to pay the Respondent $5,500.00.

6. The Applicant claims approximately $3,089.00 for her counsel and other individuals to review and summarize transcripts. This is a task that could have been performed by students or administrative staff at a much lower rate, and I am therefore reducing the amount by $2,000.00.

7. I am excluding the amount of $140.00 charged on December 4, 2015 on account of a conference with an unknown person with Ms. Lucarelli regarding evidence, as it is unclear what this relates to.

8. I am not including the sum of $66.00 claimed for preparation of a Factum and Book of Authorities and research on expert evidence on December 7, 2015, as there was no Factum and Book of Authorities due or submitted at that time on this topic or any other issue in the trial. The only Factum that was required around this time would have related to the Contempt motion.

9. I have deducted the sum of $72.00 on account of retroactive child and spousal support calculations, for reasons discussed above.

10. The Applicant claimed approximately $3,717.00 during this period on account of preparation of Closing Submissions. She claimed an additional amount of approximately $4,500.00 for this same task after serving the June Offer, for a total claim of $8,217.00. This is a disproportionate amount having regard for the nature of the claims. A more reasonable total amount would be $4,500.00, which would represent two full days of work. This amount will be included in the calculation of costs for the period after the June Offer was served. I am not including the sum of $3,717.00 in the total reasonable costs for the period under discussion.

[53] After making the adjustments referred to above, I conclude that a reasonable total amount that should have been claimed on account of fees in relation to the period from October 23, 2013 until the June Offer was made on June 16, 2016 is approximately $79,227.50. I am awarding the Applicant 75% of this amount, which is $59,420.62.

[54] My decision to allow costs at the relatively high rate of 75% for this period is based on several factors. First, the majority of the work carried out related to the custody and access issues. These matters were of tremendous significance to the parties, and counsel for the Applicant was justified in spending a considerable amount of time in dealing with them. As I discussed at great length in my Reasons for Judgment, the Respondent did not respond to progress that the Applicant had made in addressing concerns and to the positive evidence regarding her access with the children in a reasonable manner. It was abundantly clear that he did not support any increases in access, and I concluded that he placed too much weight on the wishes of the children as expressed to him. I found that the Respondent had actively involved the children in the custody and access issues and that this had impacted negatively on attempts to achieve a reconciliation between the Applicant and the children. I made numerous findings that demonstrated the Respondent’s inability to support the Applicant’s relationship with Jacob and Carter or the Applicant’s role as a parent. The Respondent’s general attitude regarding the custody and access issues was the most significant cause of the extremely protracted nature of the proceedings after supervised access became available to the Applicant in October 2013.

[55] I have also considered the Respondent’s litigation conduct in relation to the spousal support issue. As I have indicated, I continued his obligation to pay spousal support until March 31, 2017. I found that the Applicant had been the children’s primary caregiver during the parties’ relationship and until she was charged with assault in April 2012, and that the role which she had assumed had significantly impacted on her ability to become self-sufficient. In addition, I concluded that she had taken reasonable steps to re-train following the separation, notwithstanding the legal and emotional challenges that she faced. Notwithstanding this evidence, the Respondent attempted several times throughout the court proceedings to terminate spousal support, and persisted in arguing at trial that his spousal support obligation should have ended as of December 31, 2015. This position was very unreasonable on the facts of this case.

[56] The third factor that supports a relatively high costs award for the period under discussion is the fact that the Applicant served the November 17, 2015 Offer to Settle prior to the commencement of trial. The Applicant submits that the November Offer to Settle meets the requirements of Rule 18(14), such that she is entitled to full recovery costs from the date of the Offer. I disagree, but I conclude that the order was nonetheless reasonable in many respects and should have prompted the Respondent to engage in whole-hearted settlement discussions about the custody and access issues at point. Instead, he persisted in advancing a position that envisioned a very limited parenting role for the Applicant and minimal access to her.

[57] On the issue of whether the November Offer met the criteria set out in Rule 18(14), I note that the Offer provided for joint custody, with a divided parallel parenting regime as a backup plan. This proposal would have granted the Applicant equal decision-making authority in all important areas of parenting, except in cases of clear disagreement. The order that I made provided for a parallel parenting regime which granted the Respondent decision-making with respect to extracurricular matters and medical/health care, treatment and assessment, with the exception of decision-making respecting counselling services to address the children’s emotional needs and issues. The Applicant was granted decision-making rights in the latter area and with respect to education and religious upbringing. The outcome of trial on this issue was in my view less favourable to the Applicant than the Offer to Settle. The issue of decision-making was one of the central issues in this case. I concluded that the conflict between the parties was so long-standing and intense that there was no reasonable prospect that the parties could work jointly with each other to make important decisions about Jacob and Carter. There were numerous other aspects of the Offer to Settle that were more favourable to the Applicant than the terms of the order that I ultimately made. For instance:

1. The Offer to Settle included a term requiring the parties to communicate through Our Family Wizard, which the Respondent did not agree to and which I did not order. This was an important issue to the Respondent.

2. The Offer included a term that Ms. Hall would assist in the implementation of the equal time-sharing regime that was proposed, with her associated fees to be shared between the parties on a proportionate-to-income basis. I did not include such a term in my order, as it was clear that the parties were simply unable to afford this additional expense.

3. The Offer provided that neither party would arrange activities for the children during the other party’s residency time without the other party’s consent. This proposal was extremely problematic from the Respondent’s perspective, as he had enrolled the children in many sports activities and he was anxious that the Applicant would not take the children to activities. I did not include such a term in my order. Instead, paragraph 9 of my order required both parties to use all reasonable efforts to ensure that the children are able to participate in the extracurricular activities that they are enrolled in during their time with the child, subject to any reasonable basis for the child missing an activity.

4. The Offer included much more rigid right of first refusal and mobility clauses than I included in the order.

5. The Offer provided for a higher amount of child support than I ultimately granted to the Applicant.

6. The Offer included very detailed provisions regarding sharing of post-secondary expenses. I considered it premature to make an order respecting such expenses given the many factors that come into play in determining child support for adult children engaged in post-secondary studies.

7. The Offer included much more favourable terms respecting the maintenance of life insurance as security for child support than were included in the order.

[58] In deciding to award costs at the relatively high rate of 75% for this period, I have also taken into consideration the terms of an Offer to Settle that the Respondent served dated December 4, 2015. The Offer provided for sole custody in favour of the Respondent, and access to the Applicant on alternate weekends and Wednesday evenings only. This Offer to Settle fell vastly short of what the Applicant obtained at trial on the custody and time-sharing issues, and sent a clear message that the Respondent had no intention of entering into reasonable and meaningful negotiations on these issues.

[59] Several factors led me to refrain from awarding costs at higher than 75% for the period under discussion. One of the most important considerations was that the Applicant continued to contribute significantly to the ongoing conflict between the parties by engaging in condescending, sarcastic and insulting commentary, responding to situations in a heightened and reactive manner and making unfounded allegations against the Respondent. This type of conduct contributed greatly to the inability of the parties to resolve the custody and access issues in an amicable and timely manner. I have also considered the fact that the Applicant was not forthright with respect to certain financial matters, and that she did not voluntarily adjust her child support for the children when her income increased. In addition, she did not allow the Respondent to assume possession of the matrimonial home until the Respondent brought a motion to resolve the issue. These are all factors that contributed to additional time and expense in resolving the issues between the parties.

3. The Period After June 16, 2016

[60] As I have indicated, the Applicant served a second Offer to Settle on June 16, 2016. Although there were certain aspects of this Offer that I did not include in my order, a consideration of the terms of the Offer as a whole lead me to conclude that the terms of the final order were generally as or more favourable to the Applicant on all important issues than the provisions of the Offer. In this regard, I note the following:

1. The Offer to Settle included terms for a divided parallel parenting regime that were very similar to those set out in the order. However, my order was more favourable to the Applicant in that it also granted her decision-making authority with respect to counselling to address the children’s emotional needs.

2. The regular time-sharing terms of my order were overall much more favourable to the Applicant than the terms of the Offer.

3. The Offer included a term requiring the Applicant to pay the Respondent child support in the amount of $442.00 per month, whereas my order requires the Respondent to pay the Applicant child support on a prospective basis of $499.00 per month.

4. The Offer included a termination of spousal support as of July 5, 2019. Although I terminated spousal support effective March 31, 2017, this order was directly linked to the time-sharing terms that I ordered which resulted in the Applicant receiving child support.

[61] Upon receiving the June Offer, the Respondent should have immediately engaged in concerted efforts to settle the outstanding issues. Again, he persisted in advancing a position that involved much less residential time for the Applicant than the terms proposed in the June Offer. His position in the face of this Offer was extremely unreasonable, and reflected his ongoing inability to accept that the Applicant should play a meaningful part in the children’s lives. Even if the June Offer had not satisfied the criteria set out in Rule 18(14), I would have concluded that the Respondent’s response should be sanctioned through an order for full recovery costs from the date of the Offer, subject to any adjustments based on the reasonableness and proportionality of the costs claimed.

[62] The total amount that the Applicant has claimed from June 16, 2016 onward is $27,829.50. I have carefully reviewed the details of the Bill of Costs relating to this period to determine whether there are any red flags with respect to the amounts claimed. In this regard, I have made the following adjustments to reach a figure that I consider to be fair, reasonable and proportional:

1. The Applicant has claimed $1,372.00 on account of drafting and working on the final order. It appears that counsel for the Applicant completed much of this task at the rate of $300.00 per hour. This is a relatively straightforward task which could have been completed by an administrative assistant, and I conclude that a reasonable amount for this task would be $500.00. I have therefore deducted the sum of $872.00 from the total costs figure.

2. The Applicant claims reimbursement for 19.00 hours total, and the sum of $4,740.00, for preparation of Costs Submissions. This total figure included time spent on Costs Submissions in relation to the Contempt motion. A reasonable amount to attribute to Costs Submissions relating to the application and the trial is $3,000.00. I have therefore deducted $1,740.00 from the total costs claimed.

[63] After making these deductions, the total amount for reasonable costs after June 16, 2016 is $25,217.50. Apart from these items, I conclude that the amounts claimed are fair, reasonable and proportional. Counsel for the Respondent suggested that it was not appropriate to order costs relating to tasks completed following receipt of the final Reasons for Judgment. I disagree. I have considered the claims relating to work completed after release of the Reasons, and I conclude that they relate to the drafting of the order and to tasks that were reasonably required to effectively carry out the terms of the order.

4. Disbursements

[64] With respect to disbursements, I am not allowing any claims for disbursements incurred prior to October 2013, for the reasons discussed above relating to the claims for fees prior to that time. With respect to disbursements claimed after that time, the Applicant seeks the following:

1. Taxable expenses for copying, which includes expenses for faxes sent and received, for summonses to witnesses, process serving, parking, mileage and legal research. Some of these expenses relate to evidence adduced on the Contempt motion. However, that evidence was also admitted for the purposes of the trial. Given that I am not crediting any of the actual costs of the hearing time for the Contempt motion to the Applicant on account of evidence adduced for trial purposes, I have no difficulty including all of the disbursement expenses in the Applicant’s costs claim for trial. The total reasonable amount for taxable disbursements for the period from October 2013 until the June Offer was served is approximately $2,412.00. Of this amount, I am awarding 75% to the Applicant, which is $1,809.00. The total reasonable amount for taxable disbursements after service of the June Offer is $533.77, and I am awarding this full amount to the Applicant. The total award on account of taxable disbursements, inclusive of HST, is $2,647.33.

2. Non-taxable expenses relating to fees for Pathstone Mental Health supervision services, summonses to witnesses, and preparation of transcripts from the Contempt motion for use at trial, totalling $1,081.81. All of these expenses were incurred prior to the Applicant serving the June Offer. I find all of the expenses to be reasonable, including the summonses relating to the Contempt motion since the evidence of the witnesses in question was also admitted at trial. With respect to the transcript expenses, these were also required for the trial, and the admission of the transcripts into evidence rather than re-calling the witnesses in question resulted in a significant saving of time and expense for both parties. I am allowing 75% of the total amount claimed for non-taxable expenses, for a total of $811.36.

5. Conclusion Regarding Quantum of Costs

[65] Based on the foregoing, I conclude that the Applicant is entitled to total costs in the amount of $99,100.00 in connection with the application and trial, inclusive of HST and disbursements, calculated as follows:

Fees for the period from October 2013 until June 15, 2016 $59,420.62

Fees for the period from June 16, 2016 onward $25,217.50

HST on Fees $11,002.96

Taxable Disbursements for the period from October 2013 until June 15, 2016 $ 1,809.00

Taxable Disbursements for the period from June 16, 2016 onward $ 533.77

HST on taxable disbursements $ 304.56

Non-taxable disbursements $ 811.36

TOTAL: $99,099.77

[66] This figure will be rounded up to $99,100.00.

PART IV: TERMS OF ORDER TO ISSUE

[67] Based on the foregoing, the costs owed by the Respondent to the Applicant in relation to the application and the trial totaling $99,100.00 should be offset by the costs which the Applicant owes the Respondent in connection with the Contempt motion in the amount of $27,940.00. The net amount owed by the Respondent to the Applicant is $71,160.00. I recognize that this is a significant amount of money, and that the Respondent is of fairly modest means. I have considered the Respondent’s financial circumstances and the fact that he has the children in his care for 50% of the time in reaching my decision on costs. However, the Applicant also has the children in her care for 50% of the time, and she was forced to fund an extremely difficult and protracted trial due to the Respondent’s intransigence with respect to the custody, time-sharing and spousal support issues in this case. Her overall financial situation is even more strained than that of the Respondent. The ultimate costs award is much less than awards that have been ordered in other similar cases involving protracted custody and access trials. The Respondent needs to appreciate that there are serious financial repercussions to pursuing unreasonable positions in Family Law proceedings. The costs award that I am making does not even come close to reimbursing the Applicant for the total costs that she was forced to incur in order to obtain a fair and just result in this matter. She will no doubt continue to suffer the financial repercussions of this trial for many years to come even with the benefit of this costs award.

[68] Given the magnitude of the costs award, the Respondent will likely need time to arrange his affairs in order to satisfy the judgment. I am therefore giving him six months to pay the costs. Accordingly, an order shall issue as follows:

1. The Respondent shall pay the Applicant costs in the amount of $71,160.00, payable by way of certified cheque made out to the law firm of Lancaster, Brooks & Welch LLP, in trust for Carmen Jackson, to be delivered to the office of Lancaster, Brooks and Welch LLP by no later than January 31, 2018.

The Honourable Madam Justice Deborah L. Chappel

Released: July 31, 2017

CITATION: Jackson v. Jackson, 2017 ONSC 4540

COURT FILE NO.: D 22850/11

DATE: 2017/07/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmen Marie Jackson

Applicant

-and –

David Gordon Jackson

Respondent

REASONS FOR JUDGMENT

The Honourable Madam Justice Deborah L. Chappel

Released: July 31, 2017