CITATION: Clark v. Moxley, 2017 ONSC 5892
COURT FILE NO.: FC-15-1451
DATE: 2017/10/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Heather Clark
Applicant
– and –
Neil Moxley
Respondent
Beverley Johnston, for the Applicant
Emily Comor, for the Respondent
Yvonne Lee, for the Office of the Children’s Lawyer
HEARD: Written Submissions
COSTS DECISION
L. sheard j.
[1] On this three-day focused hearing, I was asked to make a determination of three issues. The first was a final determination of what school the parties’ son would attend in September 2017; the second, what interim parenting arrangements were in the child’s best interests; and third, what activities should the child be registered in for September 2017.
[2] At the opening of the third day of the hearing, the parties advised the court that they had reached agreement on their son’s activities, which left the Court to decide the remaining two issues.
[3] For written reasons given, I determined that the parties’ son should attend the school put forward by the applicant mother (the “Mother”). I also determined that preserving the status quo parenting schedule was in the child’s best interests. However, the Court recognized that the status quo since 2015 had included significant time spent by the respondent father (the “Father”) driving his son to and from school and his mother’s home. Therefore, in recognition of that time, the Court ordered the Father to be permitted additional afterschool access on Week 1 on a day other than the child’s usual overnight access with the Father. As set out in the decision, the additional mid-week access time was intended to recognize the Father and son commuting time spent over the previous two years and to provide the opportunity to substitute that commuting time for other Father and son activities.
[4] The parties were invited to submit costs submissions, if they were not able to resolve that issue. Costs submissions were received so that the issue could be decided by the Court.
Factors
[5] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules, O. Reg. 114/99 (“FLR”), and include that the successful party is presumed to be entitled to costs, the reasonableness of the behaviour of each party and any offer to settle, any acts of bad faith by any party, the importance complexity or difficulty of the matter, the scale of costs, hourly rates and time spent, and the reasonable expectations of the losing party.
Success
[6] The Mother was successful on the two issues decided by the Court. Although the Father submits that he had some success on the parenting schedule issue, the Court accepted the position advanced by the Mother that the status quo should be preserved. The interim parenting schedule was intended to achieve that result.
Complexity and Importance
[7] There is no question that these issues were very important to the parties. The involvement of the Office of the Children’s Lawyer (“OCL”) somewhat added to the complexity of the evidence before the Court in large part because of the Father’s communication missteps with their child concerning the involvement and the role of the OCL. Despite that, this case was not overly complex: the parties’ child is healthy, happy, and successful at school, enjoys a good relationship with his parents and with his step-family, and involved in a number of healthy extracurricular activities. The decision respecting the parenting schedule was relatively straightforward given the evidence from both sides and from the OCL that the child was thriving in the existing parenting schedule.
[8] Similarly, the decision concerning choice of school was not overly complex given where the parents live and work, the child’s extracurricular activities, on which the parents had reached agreement, the availability of before and after school care, and the child’s transportation needs.
Unreasonable behaviour or bad faith
[9] As stated in the reasons on the motion, the Father did act inappropriately in his communications with his son and, in particular, in communications regarding the involvement of the OCL. While it may not have been his intention, the Father’s communications undermined the position put forth by the OCL concerning the child’s views and preferences.
[10] Given that the Mother was successful, the Father acknowledges that she is presumptively entitled to her costs and the Court need not and does not rely on the inappropriate communications in making that award.
Offers to Settle
[11] The parties exchanged offers to settle. In her offers to settle, the Mother allowed each part to be accepted individually. In part B of her offer of April 12, 2017, the Mother proposed that their child attend Sacred Heart Catholic high School commencing September 2017. That was the determination of the Court. However, part B also includes other provisions respecting custody and access that were not before this Court.
[12] The Mother’s offer to settle of June 6, 2017, permits acceptance in parts. Under part A of this offer, the Mother proposed that the child attend Sacred Heart. Therefore, the offer made by the Mother on this issue was the same as ordered by the Court.
[13] Under part B of her offer of June 6, 2017, the Mother offered to settle the issue of recreational activities. The Mother’s offer on activities matches what was set out in the Father’s offer of June 7, 2017 but his offer was not open to be accepted in separate parts and includes terms relating to summer holidays, which were not before the Court. Although the issue of recreational activities was resolved by the parties on or before the third day of the hearing, the Mother seeks her costs of that issue. Paragraph three of the Father’s offer of June 7, 2017 imposes a term that the activities close to the Mother will be scheduled on days when the child was with her and those activities located near the Father were to be scheduled on days when the child is living with the Father. Those additional terms were neither asked for nor determined by this Court. I conclude that the Mother’s offer of June 6, 2017 and in particular, part B, is in keeping with the agreement reached between the parties after two days of the hearing.
[14] Part C of the Mother’s offer of June 6, 2017 proposes continuing the interim parenting schedule made by the Order of Justice Roger dated September 10, 2015 and offers additional time to the Father, on PD days that fall before the Father’s parenting time and on the snow days that fall after his parenting time, providing that the Father is not at work.
[15] The Mother submits that part C of her June 6, 2017 offer is substantially similar to the order made by this Court respecting a parenting schedule. I agree. Given the Court’s decision regarding what school the child is to attend in September 2017, the Father would no longer be needed to assist with the driving responsibilities between the Mother’s house and the child’s school. As stated in my reasons on the motion, the interim parenting schedule ordered was intended to be consistent with the status quo that had been established by the Order of Justice Roger.
[16] At paragraph 20 of the Father’s offer to settle of March 29, 2017, he proposed that their son attend Sacred Heart High School in Stittsville commencing September 2017. Again, however, the terms of his offer are not severable and included a significant departure from the established interim parenting schedule. This offer was withdrawn before the hearing. The Father also put forward this proposed interim parenting schedule on the hearing before me.
[17] Overall, I conclude that the terms of the Mother’s offer to settle of June 6, 2017 are either what was ordered on the motion or substantially similar to that awarded. For that reason, the Mother’s offer must be taken into account by the Court when determining the scale of costs.
[18] The Mother breaks down her costs into pre-offer to settle (i.e. prior to April 12, 2017) and post-offer to settle. She seeks partial indemnity costs prior to April 12, 2017 and full indemnity costs after that date. For the latter she relies on the provisions of Rule 18 (14) of the FLR.
Scale of costs, hourly rates, proportionality and amount the unsuccessful party would expect to pay
[19] Both parties were represented by senior and very capable counsel. That is also reflected in the fees charged by each, which are very close in amount. The total fees, disbursements and HST set out in the Mother’s Bill of Costs is $47,755.49. The total fees, disbursements and HST set out in the Father’s costs submissions is $41,622.98.
[20] The costs submissions of the Father were prepared without having seen the costs submissions of the Mother. However, given the similarity in total fees and disbursements, there would be little basis for either side to take issue with the amounts. For the same reasons, it is reasonable for the Court to conclude that the costs incurred by the Mother were within the amount reasonably contemplated by the Father to have been expended to this stage in the litigation.
[21] The position taken by the Father is that:
(a) the Father was required to incur costs to prepare his witnesses to be cross-examined and that the Mother did not advise the Father until August 1, 2017 that she did not intend to cross-examine his witnesses on their affidavits. As a result, the Father incurred unnecessary and considerable costs;
(b) while the Mother’s offer to settle was delivered well in advance of the first date on which this matter was ultimately heard, it was served only after all the documents had been filed and only three business days before the original June 2017 hearing date. Therefore, the Father submits that the Mother’s offer did not meet the requirement that it be served seven days before trial and should not be considered on the issue of costs. The Father further submits that the Mother should only be able to claim costs from the date of the offer, which should only include attendance time at the hearing and minimal preparation; and
(c) the Father’s financial situation is precarious as his debts exceed his assets. The Father submits that, unlike the Mother, he has no one with whom to share his expenses, which is a factor that the court may take into account.
[22] The Father relies on the decision of Blanchard v. Walker, 2012 ONCJ 799. In that case, the court noted that ability to pay may be relevant to the issue of quantum of costs but not to a party’s entitlement and that, pursuant to Rule 24 (11)(f) of the FLR the ability to pay is given significantly less prominence than the presumption that costs will follow success.
[23] The Court in Blanchard also concluded that the ability to pay does not, nor should it, override the other factors under Rule 24 (11) of the FLR nor shield the party from liability for costs.
[24] The Father also refers to the principles set out in Boucher v. Public Accountants Council (Ontario), (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (CA) which provides that the overall objective of the Court in determining costs is to fix and amount that is fair and reasonable for the unsuccessful party to pay in the proceeding.
[25] In their bills of costs, both parties include time spent to prepare for and attend the trial management conference. The Mother includes time spent to prepare for and attend the settlement conferences as well as the trial management conference. Having reviewed the endorsements made on the various conferences, I note that costs were reserved to the judge hearing the motion, except for the endorsement of Justice Robertson of the settlement conference of January 2017, which was silent with respect to costs.
[26] This Court is bound by the decision of the Court of Appeal in Islam v. Rahman, 2007 ONCA 622 in which the Court held that in the absence of a specific order for costs, no costs may be awarded by the trial judge in relation to such steps. Islam remains good law. (See, Bortnikov v. Rakitov, 2016 ONCA 427). Accordingly, neither party is entitled to costs relating to the settlement conference before Justice Robertson.
Costs Awarded by Roger J.
[27] On September 10, 2015 Roger J. made an order that the parties’ child would continue to attend the public school in Almonte, Ontario. He fixed the amount of costs of that motion at $3,000.00, payable in the cause. The Mother submits that, as she now has a final order directing which school their child shall attend in September 2017, the issue of schooling has been finally determined and, accordingly, the costs awarded by Roger J. are now payable to her. I disagree.
[28] While it may be true that the issue of what school the parties’ son will attend has been finally determined, there are other issues which remain to be determined namely, a final parenting schedule. In his endorsement, Roger J. did not state that $3,000.00 in costs would be awarded to the parent who was successful on the school issue, but “in the cause.” I conclude that so long as there are unresolved issues between the parties there is a “cause”, which has not been decided by a court. Accordingly, I conclude that it shall be up to the trial judge to determine which party is entitled to the $3,000.00 in costs fixed by Roger J.
[29] In the endorsement of Doyle J. of March 3, 2017, the issues for a focused hearing were to be:
The child’s school in September 2017;
What parenting arrangements are in the child’s best interests; and
What custody arrangements are in the child’s best interests.
[30] At the Trial Management Conference of May 29, 2017, Doyle J. revised the issues to provide that the Court was to make a final order on the school issue; an interim order on the parenting schedule; and to determine the child’s extracurricular activities for September 2017. While the endorsement is silent, given the timing of the motion and the nature of that relief, I conclude that the order on the third issue was intended to be a final order.
[31] The Father urges the Court to award only a portion of the costs incurred to date as a trial is still required on the issue of a final parenting schedule. The Father suggests that the one-third of the time spent prior to May 29, 2107 should be considered as trial costs and reserved to the trial judge to determine. The Father also submits that the costs of the parenting issue should also be reserved to the trial judge and that only 25% of the Mother’s costs should be awarded at this time, which costs can be attributed to the school issue.
[32] Although the Father’s approach has superficial appeal, I cannot find a basis to conclude that one-third of the time spent by the Mother’s counsel prior to May 29, 2017 relates to a future trial. In looking at the time, it includes time spent on offers to settle, communications with her client and with opposing counsel. Certainly, on and after March 3, 2017, everyone was preparing for the focused hearing. Given the importance to the parties of the interim parenting schedule, I conclude that the time spent was in preparation for the focused hearing. Moreover, the process itself was different from a trial: the parties relied on their affidavits and were limited to 30 minutes in chief. Their witnesses were entirely limited to their affidavit evidence, and were to give oral evidence only in cross-examination.
[33] The Father also asserts that his position was entirely consistent with the position taken by the OCL and had his son’s best interest at heart at all times. With respect to the latter point, the Father knew that the OCL would take an active role at trial, would put forth a witness at trial, and would support his position. Despite that the Mother had to prepare for and respond at trial to the evidence and submissions put forth by the Father, and by the OCL, who supported the Father’s position, the costs incurred by the Father and the Mother are relatively close. Further, despite that the Court could make only an interim order, at the hearing, all parties addressed the parenting schedule issue in a vigorous and thorough manner.
[34] With respect to the Father’s submissions that he had his son’s best interests at heart, in this case it was clear that both parents love their son and want what they believe is best for him. However, despite the position he took at trial on the school issue, prior to the hearing the Father had offered to allow their child to attend the school put forth by the Mother, provided that they had a 50/50 parenting schedule. To some extent, it seems that both parents agreed that it would be in their son’s best interests to attend the school that the Court determined he should attend. It was open to the Father to accept that part of the Mother’s offer. Had he done so, the costs to prepare for and attend the focused hearing would have been greatly reduced.
[35] Should the parties not be able to resolve the outstanding issues, they will need to prepare for trial, a different process than the focused hearing that demanded extensive affidavits and limited the evidence at trial. Further, even on the parenting schedule issue, different considerations apply to an order made on an interim basis and one that is intended to be a final order.
[36] For all the above reasons, I conclude that it is reasonable for the costs sought by the Mother to be determined by this Court. Should the matter ultimately proceed to trial, it will be the costs incurred on and after the focused hearing (and the costs before Roger J.) that would be before the trial judge.
Disposition
[37] In consideration of the applicable law and the evidence, I have determined that the Father should pay costs to the Mother in the total amount of $34,968.42, calculated as follows:
(i) Partial indemnity costs to April 12, 2017 fixed at $5,000.00;
(ii) Substantial indemnity costs after April 12, 2017 fixed at $25,750.00;
(iii) HST on (i) and (ii), above, ($5,000 + $25,750 x 13%) of $3,997.50; and
(iv) Disbursements and HST of $220.92.
L. Sheard J.
Released: October 3, 2017
CITATION: Clark v. Moxley, 2017 ONSC 5892
COURT FILE NO.: FC-15-1451
DATE: 2017/10/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Heather Clark
Applicant
– and –
Neil Moxley
Respondent
COSTS DECISION
L. Sheard J.
Released: October 3, 2017