CITATION: 2017 ONSC 4836
COURT FILE NO.: 644/14
DATE: 2017/08/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shannon Charisse Glasius, Applicant
AND
John Willard Brown, Respondent
BEFORE: Mr. Justice Patrick Hurley
COUNSEL: Theresa J. VanLuven, for the Applicant (Rachel Stephenson appearing on August 8, 2017)
Michael Swindley, for the Respondent
HEARD: August 8, 2017
costs ENDORSEMENT
HURLEY, J.
[1] The parties settled this proceeding with the exception of the issue of costs by minutes of settlement dated March 15, 2017.
[2] Paragraph 18 of the minutes of settlement states:
a. The parties are not ad idem on the issue of costs for this application. The parties seek permission from the court to make written submissions as to costs pursuant to rule 24 of the Family Law Rules.
[3] According to the endorsement record, a final order was made on consent on March 17, 2017 in accordance with the minutes of settlement and a hearing date was to be set for oral submissions on costs.
[4] On the consent of counsel, a 30 minute hearing date was scheduled for August 8, 2017 on June 15, 2017.
[5] Written submissions were filed by the parties. Mr. Swindley and Ms. Stephenson appeared before me on August 8 and advised me that they were content that the issue of costs be decided on the basis of the written submissions without any oral argument. Both filed case law on this date.
[6] The respondent asserts that he is entitled to costs because he was the successful party and made an offer to settle before the commencement of this proceeding that was more favourable than the terms of the negotiated settlement. He is seeking full recovery of his costs from January 15, 2016 onwards. According to his bill of costs, the total amount on a substantial indemnity basis is $7,063.75 and on a partial indemnity basis is $4,786.94. In the written submissions, the total amount of fees is identified as $8,612.50 plus HST and disbursements.
[7] The applicant submits that there should be no costs awarded to the respondent. Alternatively, if costs are awarded, they should be substantially less than the amount claimed by the respondent. Her principal objections to an award of costs in favour of the respondent is that he unreasonably refused her proposal for a private assessment, leaving her no alternative but to commence this application; that the terms of the negotiated settlement are not more favourable than the informal offer to settle made by him; and that she voluntarily agreed to pay child support as a term of the settlement notwithstanding that the respondent did not seek such relief in his answer.
[8] The respondent acknowledges that there was no formal offer to settle pursuant to rule 18. He relies on a letter which his lawyer sent to the applicant’s then lawyer, Jacques Menard, on January 15, 2016 following a settlement meeting attended by both the parties and their lawyers. This letter was not signed by either the respondent or his lawyer so it does not comply with subrule 18(4). I also do not believe that the cost consequences referred to in subrule 18(14) apply because the conditions stipulated in subsection 14 have not been met in this case. As a result, although the respondent relies upon rule 18 to advance his claim for costs on a full recovery basis, I conclude that the rule does not apply in the circumstances.
[9] I agree, however, that I can take the letter into account in exercising my discretion over costs pursuant to subrules 24(5)(c) and 24(11)(f).
[10] In Upton v. Harris, 2016 ONSC 2891, Mr. Justice Charney reviewed the case law on costs in the context of a negotiated settlement. As many judges have observed, it is very difficult to accurately measure success when a case is settled and a court should be cautious in awarding costs against either party to a settlement.
[11] The parties are to be commended for settling this litigation at an early stage without any contested hearing. Based on the written submissions, a review of the continuing record and the report of the Children’s Lawyer, I cannot, to borrow Heaney, RSJ’s words in Morrill v. Turnbull, 2016 ONSC 1906, “declare a winner or loser” in this case.
[12] The respondent did achieve a settlement that essentially maintains the status quo and supports his position that the children should remain living in Kingston. To that extent, he was successful in opposing the application.
[13] However, in exercising my discretion, I have decided that the appropriate result is that the parties bear their own costs. I say this for two reasons:
a. One is the applicant’s uncontroverted submission that she proposed a private assessment before the commencement of her application which the respondent declined and that she made it clear that, if an assessment was conducted, she would abide by the recommendations of the assessor which she ultimately did soon after the disclosure meeting took place with the assessor appointed by the Office of the Children’s Lawyer.
b. The second is the applicant’s voluntary agreement to pay child support despite the respondent’s avowal in paragraph 48 of his answer that he was not seeking the payment of child support by her.
[14] While I do not have sufficient evidence to conclude, with any degree of certainty, that the applicant is “worse off financially” or that she is “financially strapped” as she alleges in paragraph 44 of her submissions, the monthly child support payment of $925 is a financial burden that may not have been imposed after a contested trial, given the respondent’s apparently deliberate decision to not claim child support even if he was successful on the mobility issue at trial.
[15] I hesitate to characterize either party’s behaviour as unreasonable. The litigation proceeded expeditiously without any contested interlocutory motions and the resolution occurred before a settlement conference was held. In the circumstances, it would be counterproductive to the judicious settlements of these types of disputes to order a settling party to pay costs to his or her opponent.
[16] Although I have decided that the parties should bear their own costs, I will also provide my view on the proper quantum of costs should I have awarded them. The costs would be on a partial indemnity basis. I have no reason to question that Mr. Swindley spent the time identified in his bill of costs and I consider the proposed hourly rate reasonable. I would have fixed the costs at $2,233.53 inclusive of HST and disbursements. I do so because some of the fees claimed are either not recoverable (e.g. preparation for and attendance at the case conference, consent motion for appointment of Children’s Lawyer, review of file by Kristin Muszynski) or the services are unrelated, on their face, to this litigation (e.g. reference to assault charges and bail conditions).
[17] The applicant has been successful in opposing the respondent’s claim for costs. I decline to award her any costs related to this issue because she should have foreseen that, if she commenced an application and it was subsequently resolved by an agreement that, for all intents and purposes, maintained the existing arrangements with respect to custody and access, the respondent would seek to recoup at least some of his legal fees from her.
Mr. Justice Patrick Hurley
Date: August 10, 2017
CITATION: 2017 ONSC 4836
COURT FILE NO.: 644/14
DATE: 2017/08/09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Shannon Charisse Glasius, Applicant
AND
John Willard Brown, Respondent
BEFORE: Mr. Justice Patrick Hurley
COUNSEL: Theresa J. VanLuven, for the Applicant
Michael Swindley, for the Respondent
COSTS ENDORSEMENT
Mr. Justice Patrick Hurley
Released: August 10, 2017