CITATION: Dowhan v. Gillen, 2017 ONSC 5269
COURT FILE NO.: 5520/15
DATE: 2017/09/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Philip Jason Dowhan
Applicant
– and –
Kelly Gillen
Respondent
Kathryn Junger, for the Applicant
Sean D. Heeley, for the Respondent
The Honourable Madam Justice Deborah L. Chappel
REASONS FOR JUDGMENT RESPECTING COSTS
PART I: INTRODUCTION
[1] On June 6, 2017, I heard a motion which the Applicant brought to request increased parenting time with the child of the parties’ relationship, Liam James Dowhan-Gillen born August 20, 2015. I made an order on that date which provided for a gradual increase in the Applicant’s parenting time in June and July, 2017, and which progressed to a regular four week time-sharing schedule commencing August 7, 2017. In my Reasons for Judgment, I invited the parties to file Written Submissions, Bills of Costs and Books of Authorities by specified deadlines if they sought costs in connection with the motion. On July 18, 2017, I made an order in chambers extending those deadlines.
[2] The Applicant has filed Written Costs Submissions in which he has requested costs in the amount of $6,277.87, inclusive of disbursements and HST. This amount represents 75% of the total amount that he incurred in relation to the motion. The Respondent has filed Responding Costs Submissions in which she takes the position that there should be no costs payable in connection with the motion. For the reasons that follow, I have concluded that the Applicant is entitled to costs in relation to the motion in the amount of $4,200.00, inclusive of disbursements and HST, which represents approximately 50% of the total costs that he incurred.
PART II: THE LAW RESPECTING COSTS
I. General Principles
[3] 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, O. Reg. 114/99, as amended, sets out a number of principles to guide the court in the exercise of its discretion.
[4] 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:
a. To partially indemnify successful litigants for the cost of litigation;
b. To encourage settlement; and
c. To discourage and sanction inappropriate behaviour by litigants.
[5] 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.)).
[6] 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
1. Costs Liability to be Determined After Each Step in the Case
[7] 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.)).
2. Success in the Case
[8] 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.)).
[9] 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.)).
3. Successful Party May Nonetheless Be Liable for Costs or Denied Costs
[10] 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)).
[11] 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.
4. The Importance of Offers to Settle in Determining Liability for Costs
[12] 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:
If the offer relates to a motion, it is made at least one day before the motion date.
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.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[13] 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).
[14] 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 is also a highly relevant factor in determining both liability for costs and the appropriate amount of a costs award (M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510 (O.C.J.); Menchella v. Menchella, 2013 ONSC 367 (S.C.J.); Potter v. DaSilva, 2014 ONCJ 443 (O.C.J.)). As Zisman, J. stated in Potter, at para. 22:
Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs. In my view, it is unreasonable behaviour for a party not to make an Offer to settle.
[15] 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.)).
5. Financial Means of the Parties
[16] Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of liability for costs and the appropriate quantum of a costs award (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 usually 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] O.J. No. 5814, 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 v, Fast, 2013 CarswellOnt 15659 (O.C.J.), “[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.”
[17] 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
[18] 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:
a. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay;
b. Costs need to be proportional to the issues and amounts in question and the outcome of the case;
c. Amounts actually incurred by the successful litigant are not determinative; and
d. 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.)).
[19] 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.
[20] 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.
[21] 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.
[22] 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).
[23] 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). 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.
[24] As I have already noted in my discussion respecting liability for costs, Rule 24(8) directs the court to order costs against a party who has acted in bad faith. This Rule is also critical to the issue of quantum of costs, since it specifically requires that costs be awarded on a full recovery basis and 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.))
[25] 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.)).
[26] 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 costs order (Jackson, at para. 99).
[27] 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.)).
PART III: ANALYSIS
[28] Upon considering the relevant legal principles regarding costs, I have concluded that the Applicant has established an entitlement to costs in connection with the motion. My decision on this issue is based largely on my assessment of the overall success of each party on the motion. In my Reasons for Judgment, I noted that I did not consider either of the parties’ proposals respecting parenting time with Liam to be in the child’s best interests, and I framed an arrangement that I concluded would most appropriately satisfy Liam’s needs and interests. Although the Applicant did not obtain the precise order that he requested in his Notice of Motion, or the alternative proposed time-sharing regime that his counsel suggested in her Opening Submissions, I am satisfied that he was overall more successful than the Respondent. In this regard, I note the following:
a. The Applicant requested that for the month of June, 2017, he have Liam every Wednesday from 4:30 p.m. until 8:00 p.m., and every weekend from Saturday at 4:30 p.m. until Sunday at 6:30 p.m. The Respondent’s proposal for the month of June, 2017 was that the Applicant have parenting time on a rotating two week schedule. Specifically, she suggested that in Week One, the Applicant would have the child for an overnight visit from Wednesday at 4:30 p.m. until Thursday morning at 9:00 a.m., and in Week Two, he would have the child for a Wednesday evening visit from 4:30 p.m. until 8:00 p.m. as well as a weekend visit from Saturday at 10:30 a.m. until Sunday at 6:00 p.m. The Respondent’s proposal for June would have significantly decreased the Applicant’s overall daytime access with Liam. My June 6, 2017 order granted the Applicant the relief that he requested for June 2017, with the exception that for the final weekend in June, his overnight with Liam was on Friday night rather than Saturday night.
b. For the month of July, 2017, the Applicant sought an order giving him time with Liam every Wednesday evening from 4:30 p.m. until 8:00 p.m., and every weekend from Saturday at 10:30 a.m. until Monday at 7:00 a.m. The Respondent’s proposal was the same as for June, 2017, as set out above. The order that I made granted the Applicant time with Liam as follows:
i. For the full day on the Canada Day holiday on Monday, July 3, 2017;
ii. Until July 21, 2017, every Wednesday evening from 4:30 p.m. until 8:00 p.m., and every weekend from Friday at 4:30 p.m. until Sunday at 6:30 p.m.;
iii. The weekend of July 21,2017, from Friday at 4:30 p.m. until Saturday at 7:30 p.m.; and
iv. An overnight visit from Wednesday July 26, 2017 at 4:30 p.m. until Thursday, July 27, 2017 at 8:00 a.m.
Although the Applicant did not obtain quite as much weekend time in July, 2017 as he had requested, I granted him significantly more meaningful weekend time with the child than the Respondent suggested. He gained three weekend visits, two of which were expanded to two overnights and one of which involved one overnight. In addition, I granted him his first mid-week overnight visit, which went beyond the mid-week access that he had asked for. The Respondent’s proposal suggested only two weekend visits, consisting of only one overnight each. Although the Respondent agreed to two overnight Wednesday visits, those periods would have ended on Thursday at 9:00 a.m., and would not have allowed for as much meaningful time between the Applicant and the Respondent as weekend time. Moreover, the order that I made provided for an extra full day visit between the Applicant and the child on the Canada Day Monday holiday, which the Respondent did not offer.
c. Commencing August 1, 2017, the Respondent requested an order granting him time with Liam every Wednesday evening, as well as every weekend from Friday at 4:30 p.m. until Monday at 7:00 a.m. The Respondent’s proposal remained the same as she had requested for June, 2017. Again, I find that the Applicant was overall the more successful party for the month of August. My order provided that the Applicant would have Liam for half of the Civic Holiday long weekend, and that thereafter, he would have the child according to a four week rotating schedule. The arrangement that I ordered granted the Applicant time with Liam for 3 out of the 4 weekends in August, with two of the weekends being from Friday at 4:30 p.m. until Sunday at 6:30 p.m., and the third weekend being from Friday at 4:30 p.m. until Saturday at 6:30 p.m. During the week leading up to his weekend access periods, I granted him an overnight access on Wednesday. During the week leading up to the weekend when he does not have access, I granted him an evening visit on Tuesday and an overnight visit on Thursday. The terms of the order differed significantly from the relief that the Applicant requested for the month of August 2017. Nonetheless, the order represented a further progression of his parenting time from the terms that I implemented for July, in that he was given an additional midweek visit during the period leading up to the weekend when he does not have time with Liam.
d. For the month of September 2017, the Applicant requested time with Liam every week from Thursday at 4:30 p.m. until Monday at 7:00 a.m. The Respondent’s proposal was that commencing August 28, 2017, the Applicant have Liam every Wednesday from 4:30 p.m. until 8:00 p.m., and alternate weekends from Friday at 5:00 p.m. until Sunday at 6:00 p.m. The terms of the order that I made respecting ongoing time-sharing, as described in subparagraph (c) above, were far less favourable to the Applicant than his proposal. In my view, his request for September was very unreasonable. It essentially sought an order that Liam reside primarily with him, despite the fact that he only had daytime visits with Liam up until the time of the motion. I conclude that neither party was overall more successful with respect to the month of September, 2017. Both of them adopted unreasonable positions.
e. The Applicant requested equal time sharing with Liam commencing in October 2017, and the Respondent’s proposal was as set out in subparagraph (d) above. Although I did not grant the Applicant equal time with Liam, I conclude that he was nonetheless the successful party overall with respect to time-sharing on an ongoing basis. The Respondent’s position was in my view unreasonable and demonstrated a high level of resistance to moving towards a fair regime that would meet Liam’s need for meaningful time with both parents. Although she conceded to alternate weekend visits consisting of two overnights rather than one, she felt a need to eliminate the overnight access that she had agreed to on alternate Wednesdays in the months of June, July and August. The order that I made granted the Applicant very liberal and meaningful time with Liam during both the week and on weekends, according to a schedule that took into account the Applicant’s work schedule and location, logistical challenges that would be involved in implementing extensive overnight time for the Applicant during the week, the Respondent’s current circumstances and her ability to provide week-day care for the child. In the end, the order was much more in line with the generous time-sharing that the Applicant was seeking than the fairly limited time that the Respondent was willing to give the Applicant.
[29] In determining the Applicant’s entitlement to costs of the motion, I have considered his overall conduct in relation to the matters that he sought to address on the motion. Although I found his position respecting time-sharing overly aggressive, I am satisfied that on the whole, he has acted reasonably in attempting to resolve the custody and time-sharing issues. The first appearance in this case was on February 18, 2016, and the Applicant consistently attempted to negotiate a reasonable parenting plan since that time. Up until the hearing of the motion, he had still not been able to exercise overnight access with Liam. He attempted to resolve the parenting issues through mediation, to no avail. Furthermore, it is evident from correspondence between counsel that the Applicant filed in support of his Costs Submissions that before bringing the motion, he proposed an interim interim resolution for the month of June, 2017 that was in accordance with recommendations that Pazaratz, J. had made at the settlement conference on May 17, 2017, and which was also the arrangement that I ordered for the month of June. The Applicant had made this proposal to give the parties an opportunity to assess how overnight weekend access progressed, and as a means of avoiding a contested motion.
[30] I have also considered the Respondent’s conduct in relation to the time-sharing issues in determining the issue of entitlement to costs. As I stated in my Reasons for Judgement on the motion and previously in these Reasons, the Respondent was not as supportive as she should have been in fostering the relationship with the Applicant and Liam. The evidence indicated that attempts to implement any meaningful increase in the Applicant’s time with Liam required intensive negotiation. Despite the Applicant’s consistent presence in the child’s life and the positive evidence regarding his parenting of Liam, the Respondent persisted in arguing that his overnight time should be limited to one overnight per week until the end of August 2017. As I have already stated, her proposal for ongoing time-sharing involved removing the alternate Wednesday overnight once double overnights on alternate weekends were implemented. This aspect of her proposal revealed a mindset that was not open to allowing the father-son relationship to deepen through the introduction of meaningful parenting time in a timely manner.
[31] Turning to the issue of the appropriate quantum of the costs award, I have decided that the sum of $4,200.00, inclusive of disbursements and HST, is a fair, reasonable and proportionate amount to award the Applicant. This represents approximately 50% of the total fees and disbursements which the Applicant has claimed, plus HST. As a starting point for addressing the appropriate quantum of the costs award, I have reviewed the Bill of Costs that Applicant’s counsel submitted. I do not have any concerns about the disbursements that counsel for the Applicant incurred and billed in connection with the motion. With respect to fees, the Bill of Costs indicates that Ms. Junger spent 19.8 hours on work relating to the motion, and that the legal fees totalled $6,930.00, not including HST. Ms. Junger charged $350.00 per hour. The time spent and fees charged were reasonable having regard for the efforts that the Applicant made in advance of the motion to resolve the issues, the materials that were required for the motion, the complexity and importance of the issues and the amount of time spent in court. I note that the Respondent’s counsel billed 16.5 hours in relation to the motion, which is not significantly far off from the time that Ms. Junger billed, which included work on a reply affidavit for the motion. In considering the total fees that Ms. Junger billed, I have also reflected upon the fact that additional time was incurred to address issues relating to the admissibility of a letter that the Respondent had obtained without advance notice or consent from the mediator, Mr. Ricketts, and that she had attached as an exhibit to her responding affidavit. The concerns that the Applicant raised about the admissibility of this letter were in my view legitimate. I also note that additional time was required to deal with issues relating to service of the Respondent’s responding material at the very end of the deadline for her to do so, which necessitated an adjournment of the motion to allow the Applicant to serve and file a reply affidavit.
[32] While the amount of fees that Ms. Junger charged was reasonable in the circumstances, I conclude that the Applicant should only be awarded 50% of his total legal fees and disbursements, plus HST on same. I have discounted the costs award in this fashion primarily because of the position that the Applicant took on the motion. Although he was overall the more successful party, his stance on the time-sharing issue was in my view far too aggressive and not sufficiently child-focussed. As I have already highlighted, his position respecting time-sharing for September 2017 involved a complete reversal of the child’s primary care from the Respondent to his care. This was an extremely unreasonable request given the evidence respecting the Respondent’s primary caregiving status since the child’s birth, her positive parenting of and relationship with Liam and her present circumstances which allowed her to care for Liam during the day. Although I granted the Applicant significantly expanded overnight time with Liam, the framework that I ordered diverged greatly from the arrangement that the Applicant requested.
[33] I have also considered the evidence respecting the efforts that the parties made to resolve the issues prior to the filing of the motion. In this regard, I note that the Applicant’s counsel sent Mr. Heeley correspondence setting out a parenting time proposal that reflected the recommendations that Pazaratz, J. had made at the settlement conference. As I have already indicated, the fact that the Applicant made this effort to resolve the issues influenced my decision regarding his entitlement to costs. Having said this, it is also clear from Ms. Junger’s correspondence that the Applicant viewed this plan as an interim interim measure only, and that he intended to continue to negotiate for a parenting arrangement that involved equal time-sharing or something close to same, including equal overnight time during the week. Given the position that the Respondent took on the motion, I am satisfied that the Applicant’s proposal would have amounted to a temporary stop-gap measure at best. At the outset of the hearing of the motion, counsel for the Applicant suggested an alternative temporary arrangement that involved somewhat less than equal time for the Applicant. This alternative plan was not presented to the Respondent ahead of the motion date. Although the Applicant presented the proposal as a compromise, I note that the proposal included a requirement that the parties continue to work towards fully equal time-sharing both during the week and on weekends. As I indicated in my Reasons for Judgment, I am not satisfied that such an arrangement would be in Liam’s best interests. The Applicant’s claim for costs is based largely on his position that the Respondent was too rigid and intransigent in her position respecting time-sharing. In my view, the same can be said for the Applicant in relation to his position.
[34] I have also taken into consideration the Respondent’s efforts to resolve the time-sharing issue prior to the commencement of the motion. Although I found her position to be overly cautious and unsupportive of the father-child relationship, I find that she did make several attempts to resolve the issues in dispute in order to avoid the need for a motion. I note that she voluntarily participated in mediation with Mr. Ricketts, and that Mr. Heeley wrote to Ms. Junger on April 5, 2017 to initiate discussions regarding the commencement of overnight access. This correspondence went completely unanswered. When the Applicant began to press for increased overnight time again in May 2017, the Respondent sent a further proposal dated May 18, 2017 for the month of June 2017 that expanded upon her previous proposal by including overnight time during the week on alternate Wednesdays. Unfortunately, the suggestions that the Respondent made for the commencement of overnights involved fairly significant reductions in the Applicant’s meaningful daytime access with Liam, which the Applicant understandably did not agree to. However, I note that when counsel for the Respondent sent the proposal dated May 18, 2017, he also suggested that the parties retain Mr. Ricketts to conduct a further mediation session on an urgent basis in an attempt to resolve the issues without the necessity of a costly motion. The Applicant did not agree to a further mediation session at that time.
[35] Of further note regarding efforts to settle the time-sharing issues, I note that although the Applicant’s counsel sent correspondence to Mr. Heeley outlining a proposed interim interim solution, the Applicant did not serve a formal Offer to Settle addressing the issues raised in the motion. Failing to serve an Offer to Settle is an important consideration in determining the appropriate quantum of costs. Rule 18 of the Family Law Rules reinforces the importance of serving formal Offers to Settle as a strategy for either fully resolving or stream-lining the issues in dispute. A formal offer is an effective means of compelling the other party to take another good, hard look at the strength of their case and to bring home to them the reality that they will face significant financial consequences if they persist in advancing an unreasonable position.
[36] Finally, my decision on the quantum and payment of costs in connection with the motion has been informed by the financial means of the Respondent, who remains Liam’s primary caregiver at this point. I received evidence on the motion that the Respondent is in receipt of long term disability benefits. She is of fairly limited means, and she also incurred significant costs in relation to the motion. Any costs award should take into consideration her ability to pay without undesirable collateral negative impact on the child. Having regard for the Respondent’s limited means, I am giving her four months to pay this costs award.
PART IV: TERMS OF ORDER TO ISSUE
[37] Based on the foregoing, an order shall issue as follows:
The Respondent shall pay the Applicant costs in connection with the motion heard on June 6, 2017 in the amount of $4,200.00, inclusive of disbursements and HST.
This costs award shall be payable by way of certified cheque made out to Kathryn Junger, Barrister and Solicitor, in trust for the Applicant, to be delivered to the offices of Ms. Junger by no later than December 29, 2017.
The Honourable Madam Justice Deborah L. Chappel
Released: September 5, 2017
CITATION: Dowhan v. Gillen, 2017 ONSC 5269
COURT FILE NO.: 5520/15
DATE: 2017/09/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Philip Jason Dowhan
Applicant
– and –
Kelly Gillen
Respondent
REASONS FOR JUDGMENT
Chappel, J.
Released: September 5, 2017