minicounsel

CITATION: Gibeau v Parker and Rivard, 2017 ONSC 545

COURT FILE NO.: FC-15-2450

DATE: 2017/01/24

BETWEEN:

Pierre and Lise Gibeau

Applicants

– and –

Jerry Parker

Yves Rivard

Respondents

Douglas Menzies, counsel for the Applicants

Jack Pantalone, counsel for the Respondent, Jerry Parker

Stephane A. Monpremier, counsel for the Respondent, Yves Rivard

HEARD: In Writing

Cost Endorsement

Background

1Caroline Gibeau and Mr. Rivard had one child, born October 5, 1998, named Ysabele Rivard. The parties separated when the child was two years of age. Over time, the child’s principle residence was with Caroline Gibeau.

2Caroline Gibeau and the child started cohabitating with Jerry Parker. Both Caroline Gibeau and Jerry Parker were Federal Government employees. During their marriage, they had a child named Joseph Yann Pierre Parker, (“Yann”), born March 18, 2003.

3On January 15, 2015, Caroline Gibeau died. At the time of her mother’s death, both children were residing with their mother and Jerry Parker. After Caroline Gibeau died, difficulties arose in the relationship between Jerry Parker and the child. In August 2015, Ysabele moved to live with her maternal grandparents, Pierre and Lise Gibeau (“the applicants”). Yann remained with Mr. Parker.

4On September 22, 2015, counsel for the applicants communicated with Mr. Rivard and Mr. Parker raising various issues including a claim for child support. There was no reply.

5The applicants decided to commence proceedings. On November 10, 2015, the applicants brought a procedural motion seeking various claims for relief including permission that the application be issued in Ottawa, rather than in Perth, Ontario, dispensing with the need to attend a case conference, seeking disclosure and seeking to set an immediate date for a motion on child support.

6On November 10, 2015, the Master granted only one claim for relief permitting the applicants to commence the custody proceeding in Ottawa. All other claims were dismissed.

7On November 30, 2015, the applicants commenced proceedings against Mr. Rivard and Mr. Parker seeking various claims for relief including custody, child support, and contribution to section 7 expenses. In addition, the applicants sought claims against Jerry Parker including guardianship of Ysabele, a declaration that Mr. Parker holds in trust for the children proceeds of a life insurance policy on Caroline Gibeau, one half of the proceeds of the sale or valuation at the time of Caroline Gibeau’s death, of the matrimonial home, any death benefits, spousal pension entitlement and any and all benefits accruing to Jerry Parker related to the death of Caroline Gibeau.

8Both Mr. Rivard and Mr. Parker filed Answers. In Mr. Rivard's Answer, he consented that the applicants have sole custody of the child Ysabele and to pay child support.

9In Mr. Parker's Answer, he denied any liability to the various claims that were raised by the applicants.

10On January 26, 2016 at a Case Conference, the parties consented to an order that the applicants would have custody of the child, the appointment of the Office of the Children’s Lawyer, scheduled a motion for child support and access and other relief. The costs of the Case Conference were reserved for the motions Judge. The Master reserved her decision on disclosure requests made by the applicants.

11On February 10, 2016, the Master ordered Mr. Parker to provide disclosure requested by the applicants. There was no mention of costs.

12On April 26, 2016, the motion for child support proceeded on consent where, inter alia, Mr. Rivard agreed to pay table child support of $481 per month retroactive to October 1, 2015, Mr. Parker made a lump sum payment of $20,000 without prejudice and the matter was placed on the November 2016 trial list and that all costs to date were reserved for the trial judge.

13The parties attended to Settlement Conferences before me on July 29, 2016 and again on August 11, 2016. Based on those discussions, the parties entered into Minutes of Settlement dated October 4, 2016, and an amendment on November 17, 2016. The parties agreed to a final settlement which was confirmed by final order dated November 22, 2016.

14The parties did not agree on costs and requested that I decide the issue of costs. The parties have provided written submissions.

Party’s position on costs

15The applicants seek costs from Mr. Parker on a partial indemnity basis in the amount of $32,481.91.

16The applicants seek costs from Mr. Rivard on a partial indemnity basis in the amount of $14,923.49.

17Mr. Parker’s position is that each party should bear their own costs and if costs are to be awarded they should be awarded in favour of Mr. Parker.

18Mr. Rivard’s position is that when a case is settled, the Court is not in a position to assess whether costs should be ordered and consequently, no costs should be ordered. In the alternative, if costs are to be awarded, that each party should bear their own costs. He declines to seek costs against the applicants as he wishes to maintain a positive rapport with his daughter’s maternal grandparents.

The Family Law Rules

19Under Rule 24 (1) of the Family Law Rules, O. Reg. 114/99 there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

20Rule 24 (5) states that in deciding whether a party has behaved reasonably or unreasonably the Court shall examine:

(a) The parties’ behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) The reasonableness of any offer the party made; and

21Rule 24 (10) mandates the Court to determine costs after each step. Where there is no order as to costs at a certain step, the Court is not to consider costs related to that step. Islam v Rahman 2007 ONCA 622.

22Rule 24 (11) states that 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;

(d) The time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;

(e) Expenses properly paid or payable; and

(f) Any other relevant matter.

23In Serra v. Serra, 2009 ONCA 395, the Court held that family law costs rules are designed to foster three important principles:

(a) To partially indemnify successful litigants for the cost of litigation;

(b) To encourage settlement; and

24Fixing costs is not a simple mechanical exercise (see Delellis v. Delellis, 2005 CanLII 36447, (Ont. S.C.).

25The Court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)

Costs determination when the parties settled all issues outstanding between them in the litigation?

26In Benoit v. Kerr, 2014 ONSC 5401, Justice McGee granted full indemnity costs were after four days of trial, the parties settled as she had an extensive record to allow her to decide which party was successful. At paragraph 23, Justice McGee stated:

Consideration of success is the starting point in determining costs. However, any attempt to determine a “winner” or “loser” in a settlement is, in most cases, complex if not impossible….. Unless there are compelling reasons to do so, costs in the circumstances of the settlement between parties ought not to be awarded by the court.”

27In A.C. v. G.K. 2015 ONCJ 399, Justice Murray considered the positions taken by the parties to determine that success was divided but that one party was more successful than the other party. In that case, the issues were the amount of table child support based on the payor’s income and a claim for contribution to retroactive section 7 expenses. She decided that the payor was more successful and granted $3,000 in costs (36% of the costs claimed).

28In Witherspoon v Witherspoon 2015 ONSC 6378, counsel appeared on the day the matter was called for trial and indicated the matter had been resolved in accordance with signed Minutes of Settlement apart from residual cost issues. Justice Leach set a timetable for the tendering of a written cost submissions. After reviewing extensive cost submissions, Justice Leach found that the attempt by the parties to argue cost entitlement and quantification was misconceived and inappropriate after the parties had reached an agreement without a trial. Amongst the factors, she considered that the inability of a judge to determine success because there was no judicial fact finding resulting in conclusions to be compared to the parties positions, that it runs counter to public policy permitting post settlement claims for costs when settlement agreements are used to compare to the objective reasonableness of pre-settlement positions and the principle that unless there are compelling reasons to do so, costs in the circumstances of a settlement between parties ought not to be awarded. Based on the above, Justice Leach was not persuaded that there were compelling reasons to depart from that principle in the circumstances of the case.

29In Ohanessian v. Kalisz 2016 ONSC 1276, Justice Kitely granted costs of $27,454 where a motion and cross-motion were both settled. In that matter, she had read many pages of affidavits but was concerned that in the absence of submissions on substantial issues in the motions without an opportunity to analyse the evidence for contradictions and challenges, it was difficult to arrive at a conclusion as to success in the bases of competing affidavits. Justice Kitely stated at paragraph 21:

I am mindful that it is essential that parties make best efforts to resolve pending motions because it creates an opportunity for them to experience collaboration that does not require judicial adjudication. I also realize that if every motion were contested, the courts would grind to a halt. I accept that sometimes counsel and the parties arrive at a consensus as to the underlying substantial issues but cannot agree as to the cost consequences. I understand that there is a role to play in making orders as to costs in such circumstances. However, when acting in negotiations which leave cost to a judge who did not adjudicate, I encourage counsel to reflect client’s expectations as to the extent to which each might be vindicated by a costs award.

30In Ball v. Ball 2014 ONSC 5754, Justice Minnema, in dealing with a request for costs in a custody matter that was settled before the commencement of the trial, found that he had jurisdiction to make a cost award in the face of the settlement where there was an extensive record with supporting documentation. After considering the pleadings, the offers and the settlement, he ordered that both parties are to pay their own costs as he found that success was divided and there was no compelling reason to make a cost order or to re-apportion costs.

31In Talbot v Talbot 2016 ONSC 1351, Justice Templeton was faced with a determination of costs where the parties signed Minutes of Settlement on the eve of a custody trial. Justice Templeton had no previous involvement in this matter prior to the determination of costs. He found that on the evidence before him, he could not decide which party was successful because he could not make the factual findings relating to reasonable or lack of reasonableness in the conduct of the parties. Consequently he ordered both parties to pay their own costs where one party sought costs of $52,128.70.

32In McNaught v McNaught 2015 ONSC 5010, I awarded costs of $17,500 in a matter that had been settled before trial. In that case, I had an extensive evidentiary record before me to allow me to conduct a proper analysis required in determining costs.

33In Herr v. Rebelo, 2016 ONSC 4829, Justice Vogelosang held:

In my view, the reluctance to award costs of a settled depends entirely on the circumstances, the claims made (and the context of the claims) and the general nature of the settlement achieved: Johanns v. Fulford, 2011 ONSC 5268, 2011 ONSC 5268 (Sup. Ct.), Kearly v. Renfro, 2012 ONSC 5391, 2012 ONSC 5391 (Sup. Ct.), C.(A.) v. K.(G.), 2015 ONCJ 398, 2015 ONCJ 398 (Ont. Ct.). In Johanns, supra Aston J. refused leave to appeal a costs award where parties had settled all of the issues except costs, rejecting the argument that resolution by minutes of settlement rendered a reasonable determination of “success” impossible. In his view, the award was properly made on “a very extensive record with supporting documentation on the positions taken by the parties, their claims in the litigation and the ultimate result, as well as the terms of Offers to Settle and the dates such offers were made.” This case is the same.

Analysis

34The Family Law Rules were designed to encourage settlement at all stages of the litigation process. Part of that process is the determination of costs. If parties settle a matter and ask the Court to address costs, it is incumbent on litigants to provide the Court with the necessary information on the claims made, the party’s positions including the offers exchanged and the final terms of settlement to allow a Court to determine the issue of which party was successful.

35In my view, where parties settle a family law proceeding, the court should determine costs if the court has a sufficient evidentiary record to conduct the required analysis. This was done in Benoit v. Kerr (supra), A.C. v. G.K (supra), Ohanessian v. Kalisz (supra) and McNaught v McNaught (supra) Johanns v. Fulford, 2011 ONSC 5268. Herr v. Rebelo, 2016 ONSC 4829

36In this matter, I reviewed the pleadings, the Settlement Conference briefs and conducted two lengthy Settlement Conferences that eventually concluded in the Minutes of Settlement filed by the parties. All parties agree that the settlement was based on recommendations made by me at the Settlement Conferences. Based on the above, I have determined that I can assess costs.

Successful Party

Claims against Mr. Rivard

Successful Party

37With respect to the claims against Mr. Rivard, the applicants were successful in obtaining table child support of $535 per month; $4,541 in arrears; a mechanism to vary the child support commencing June 1, 2017; an obligation by Mr. Rivard to make ongoing financial disclosure; an obligation by Mr. Rivard to pay to the applicants in trust any funds received from an registered educational savings plan for the child and provided a termination mechanism for his obligation to pay child support.

38In his Answers dated January 29, 2016, Mr. Rivard did not deny his liability to pay child support but only that as a result of a stroke, it limited his ability to pay. He consented to the applicants having sole custody of the child.

39The problem on child support was the applicants claimed table child support from both respondents. Mr. Rivard did not consent to pay table child support after receiving the demand letter or after being served with the pleadings or attending a Case Conference. He agreed to pay temporary table child support on April 26, 2016 and retroactive support in the final Minutes.

40The applicant were required to commence proceedings. They did and I find that the applicants were the successful party in their claims against Mr. Rivard and are presumptively entitled to costs.

Claims against Mr. Parker

41The applicants sought table child support, a contribution to the child section 7 expenses and a declaration that Mr. Parker holds in trust for both children:

(a) Proceeds of the life insurance policy on the life of Ms. Parker;

(b) One half of the proceeds of sale of the matrimonial home or one half of the value of the matrimonial home at the time of Ms. Parker's death;

(d) The monthly Surviving spousal pension entitlement that accrues to Mr. Parker;

(e) Any and all benefits accruing to Mr. Parker that would otherwise have fallen into Ms. Gibeau’s estate for the benefit of the two children;

(f) Such other assets or income streams arising out of Ms. Gibeau's death that might have been available for the support of the children but presently go to Mr. Parker.

42In the final order, Mr. Parker agreed to pay $6000 in retroactive child support up to July 31, 2016 and that Mr. Parker and Mr. Rivard would pay combined child support in the amount of $986 per month with Mr. Rivard paying $535 per month and Mr. Parker paying $451 per month.

43There were other provisions dealing with child support including Mr. Parker paying the sum of $50,000 to the applicants in trust in satisfaction of his contribution to section 7 expenses for the child's university expenses as well as the children's claim to one half of life insurance proceeds received by Mr. Parker. In exchange of those payments, the applicants released any and all claims against Mr. Parker.

44A significant part of the claims against Mr. Parker by the applicants were related to claims against the matrimonial home, surviving spouse pension and other benefits received as a result of Ms. Gibeau’s death. Only part of the claim for life insurance was successful.

45The applicants were required to commence proceedings against Mr. Parker to obtain any relief. I find that the applicants were partially successful in obtaining retroactive and ongoing child support, a lump sum payment towards university expenses and part of the claim for life insurance against Mr. Parker while Mr. Parker was successful in defending most of the property claims made against him.

The importance, complexity or difficulty of the issues

46From the amount of the materials filed and considering the issues canvas, this application was very important to all parties.

47The issue of child support was difficult because the applicants’ claim of table child support against the two defendants raised the issue of apportioning that responsibility. This issue was a subject of two lengthy settlement conferences that resulted in a highbred approach to table child support between the two fathers.

48The property claims raised by the applicants against Mr. Parker were either complex or difficult.

The reasonableness or unreasonableness of each party’s behaviour

49I find that all parties acted reasonably. I agree that certain allegations raised against Mr. Parker were unnecessarily aggressive and inflammatory but I do not find that the allegations rose to the level of unreasonable conduct.

The lawyer’s rates and disbursements

50I find that the billing rates for the counsel to be reasonable based on the experience of the lawyers.

The time properly spent on the case

51I have reviewed the time summary and have reviewed the detailed Bill of Costs. It appears that two of the three parties have spent over $85,000 in legal fees between September 2015 and November 2016 to arrive at a settlement regarding retroactive and ongoing child support including Section 7 expenses against two fathers. I have no disclosure as to Mr. Rivard’s costs.

52It is important to note that Mr. Parker’s costs totalled $30,454.23. The applicants’ costs totalled $54,650.92. Mr. Rivard did not disclose his total costs.

53I find that the time spent by the applicants in having three lawyers and three law clerks working on this matter was unreasonable and excessive. In comparison to the $54,650.92 spent by the applicants, Mr. Parker’s total cost were $30,454.23. Neither respondents had more than one lawyer working on the matter.

54The litigation consisted of drafting pleadings, attending on a motion regarding jurisdiction, preparing for and attending at a Case Conference, providing written submissions regarding disclosure requested by the applicants, preparing for but not arguing a motion for temporary order of child support and to attending two Settlement Conferences. In addition, there were costs incurred for drafting the Minutes of Settlement as well as incidental issues such as attending a disclosure meeting with the office of the children’s lawyer.

55The applicants seek $12,679.47 in legal fees from Mr. Rivard. Those legal fees can be broken down as follows:

(a) $2,105.19 for preliminary matters and jurisdictional arguments in obtaining the order for Master Champagne dated November 30, 2015. Upon a review of the Notice of Motion seeking eight different procedural orders, Master Champagne granted one claim for relief permitting the proceeding to be commenced in Ottawa. The balance of the motion was adjourned to the Case Conference. Mr. Rivard did not attend the Case Conference before the Master because he was recovering from a stroke. I find that the applicants were not the successful party on the motion where they claimed eight claims for relief and were successful on one. On the one successful claim, Mr. Parker consented and Mr. Rivard did not attend as he was recovering from a stroke. I will not grant any costs for this step;

(b) $6,190.14 for pleadings and proceedings leading up to the interim motion on April 26, 2016. The motion eventually proceeded on consent;

(d) $2,359.59 negotiation and preparation of the final Minutes of Settlement; and

(e) $452.00 preparation of final order.

56The applicants seek $28,218.34 in costs from Mr. Parker broken down as follows:

(a) $4,210.38 for preliminary matters and jurisdictional arguments in obtaining the order for Master Champagne dated November 30, 2015. For the same reasons that I did not impose any liability on Mr. Rivard, I will not impose any liability on Mr. Parker;

(b) $7,972.15 related to the disclosure motion before Master Champagne. As costs were not reserved, I will not consider these costs;

(c) $6,190.14 for pleadings and proceedings leading up to the interim motion on April 26, 2016. As previously noted, this proceeded is on consent;

(d) $452.00 related to the appointment of the OCL and receiving disclosure from the OCL;

(e) $5,249.98 for preparation for and attendance at the Settlement Conference before me on July 29, 2016;

(f) $3,826.93 for preparation for and attendance at the Settlement Conference before me on August 11, 2016.

(g) $3,231.80 for negotiation and preparation of the final Minutes of Settlement; and

(h) $452 for preparation of final order.

Offers made

57Offers to settle are the yardstick with which to measure success and are significant both in considering liability and quantum as set out in Osmar v. Osmar (2000), 2000 CanLII 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.).

58There were exchanges of offers to settle contained in various letters including a letter dated March 23, 2016, that was subject to Mr. Parker’s approval, that Mr. Parker would pay full Guideline support on an interim without prejudice basis but terminating at age 18 before the motion before Justice Kershman. The order of April 26, 2016 did not include any obligation on Mr. Parker to pay support, although the final Minutes provided such an obligation. However, no formal offer was made by Mr. Parker until his Offer to Settle dated October 14, 2016 made after the Settlement Conferences. The final settlement mirrors overall that offer.

59The applicants made an Offer to Settle dated August 15, 2016, after the Settlement Conferences, where they offered to settle with Mr. Rivard paying $481 per month and Mr. Parker $477 per month as table child support and accepting $50,000 from Mr. Parker in exchange for a release of all past, present and future claims against Mr. Parker save his obligation to pay table child support.

60The final agreement included an obligation that Mr. Rivard pay $535 per month and Mr. Parker $451 per month as table child support and the payment of $50,000 by Mr. Parker.

Any other relevant matter

61Counsel for Mr. Rivard submits that he was ordered to pay $2700 per month as a combination of child and spousal support in March 2016, after separating from his wife and that he has no ability to pay costs. Further, he advises that his counsel has prepared these costs submissions free of charge because he has no ability to pay his own lawyer.

62Mr. Rivard is in receipt of a termination package providing for him to be paid until May 2017 based on a salary of $109,000 at which point he will receive disability payment of approximately $71,000 per year. The applicants are retired with a combined income of $60,000.00. Mr. Parker earns $118,000 per year.

63The applicants submit that any cost award should be paid by Mr. Rivard and may be paid over a four-year period interest free. The applicants also submitted a reasonable time for Mr. Parker to pay, if requested.

Disposition

64I find that Mr. Rivard was cooperative but the applicants were required to commence proceedings. Taking all the factors set out herein into consideration, I order Mr. Rivard to pay to the applicants the sum of $6,000 inclusive of disbursements and HST payable in 48 equal instalments of $125 per month payable on the first day of each and every month commencing March 1, 2017.

65I find that the applicants were successful in obtaining retroactive and ongoing table child support and the payment of $50,000 which included a contribution to Ysabele’s university expenses but that they were unsuccessful on the property claims against Mr. Parker.

66In the circumstance, I order Mr. Parker to pay to the applicants the sum of $10,200 inclusive of disbursements and HST payable in 24 equal instalments of $425 per month payable on the first day of each and every month commencing March 1, 2017.

Shelston J.

Released: January 24, 2017