Guertin v. Dumas, 2017 ONSC 5950

CITATION: Guertin v. Dumas, 2017 ONSC 5950

COURT FILE NO.: FC-12-549-2

DATE: 2017/09/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kevin Michael Guertin

Applicant

– and –

Melanie Marie-Paule Dumas

Respondent

Fan MacKenzie, counsel for the Applicant

Russell Molot, counsel for the Respondent

HEARD: In Writing

Costs Endorsement

SHELSTON, J.

1On August 22, 2017, I ordered that the child be returned to the catchment area for Ecole Elementaire Catholique Des Voyageurs by August 25, 2017 and that the child be registered in said school for September 2017. I further ordered that the parties schedule and attend a case conference on all issues on an expedited basis to be heard in the month of September 2017.

2I encouraged the parties to settle the issue of costs by September 1, 2017. They could not and have received their written submissions.

3The applicant’s position is that he is entitled to full indemnity costs for the appearance before Justice Engelking on August 1, 2017 and the appearance before me on August 18, 2017. The full indemnity costs are $12,607.67 while substantial indemnity costs are $11,346.90.

4The respondent’s position is that each party should pay his or her own costs and in the alternative, that a nominal amount should be awarded having regard to the respondent’s financial situation.

5At the motion on August 18, 2017, I indicated to the parties that I would only decide the issue of the child’s schooling and would not deal with the other claims for relief in the notice of motion. My decision only addresses the child’s school. All other issues were adjourned to a future date.

6Under Rule 24 (1) of the Family Law Rules, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. In this case, the applicant was a successful party.

7Rule 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

(c) Any offer the party withdrew or failed to accept.

8If 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. (Rule 24(8) of the Family Law Rules)

9The factors to be considered in assessing costs are set out in Rule 24 (11) of the Family Law Rules, which include:

(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 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.

10Offers 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 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.).

11Even if “full recovery” provisions of Rule 18 of the Family Law Rules are engaged, the quantification of costs still requires an overall sense of reasonableness and fairness. The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. The court retains a residual discretion to make a cost award that is proportional, fair and reasonable in all the circumstances. (Chomos v Hamilton 2016 ONSC 6232, Pazaratz, J., para 57.)

12The court has the discretion not to make an order for full recovery even where the parties meet the conditions of Rule 18(14) and in making that determination, a relevant consideration is the financial condition of the parties especially the unsuccessful custodial parent.(Church v. Church 2003 2084 ONSC)

13In an offer to settle dated July 19, 2017, the applicant made an offer that the child is to attend school in Ottawa. The last paragraph of the offer indicated that the offer was open for acceptance until one minute after the start of the trial or withdrawn by the applicant in writing. The respondent argues that this offer was not open for acceptance on a motion because if she accepted it, it would be a final order. I disagree with this submission because the offer to settle specifically refers to settling the emergency motion and the stepped costs are related to the motion. Finally, the offer does not indicate that the acceptance of the offer resolved the matter in a final basis.

14In any event, the respondent did not accept the offer. The applicant’s offer to settle dated July 19, 2017 is substantially what I ordered. Consequently, the applicant is entitled to his costs in accordance with Rule 18(14) of the Family Law Rules subject to the exercise of my discretion in awarding costs on what is proportional, fair and reasonable.

15One of the factors the court is to consider in assessing costs is the importance, complexity or difficulty of the issues. I do not find that the issues were complex or difficult but they were extremely important considering the issues related to the child’s school.

16In determining the quantum of costs, I am to consider the time properly spent on the case, including conversations between counsel and the party and witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing and preparation and signature of the order. Both parties provided extensive affidavit evidence and a factum.

17I find that the applicant’s counsel hourly rate of $215 to be reasonable based on her four years of experience. In reviewing the applicant’s bill of costs, counsel has docketed 50.90 hours for this motion. The total legal fees incurred by the applicant total $10,970.50 including the time for three law clerks who are being charged that it between $85 and $95 an hour.

18The two lawyers for the respondent spent a total of 16.6 hours for two attendances before the court. For the motion, Mr. Molot spent 10.6 hours while Ms. Fuentealba spent six hours preparing for and attending the motion before Justice Engelking.

19In assessing costs, the 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 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)

20I agree with the submissions of the respondent that the time spent on motion by counsel for the applicant of 50.90 hours was excessive considering that there was a motion for leave to bring a motion before a case conference and then arguing this motion on its merits.

21On the issue of bad faith, in Scipione v. Del Sordo, 2015 ONSC 5982, 258 A.C.W.S. (3d) 547, Pazaratz J. reviewed the law of bad faith:

96. Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: Children’s Aid Society of the Region of Peel v. F. (I.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle, 2005 7660 (ON SC), 2005 7660, [2005] O.J. No. 1056 (SCJ); Leonardo v. Meloche, 2003 74500 (ON SC),[2003] O.J. No. 1969 (SCJ); Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).

97. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. Stewart v. McKeown, 2012 ONCJ 644, 2012 ONCJ 644 (OCJ); F.D.M. v. K.O.W. 2015 ONCJ 94 (OCJ).

98. To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison 2015 ONSC 2002.

99. Rule 24 (8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. S.(C.) v. S.(C.) (supra); Piskor v. Piskor, 2004 5023 (ON SC), [2004] O.J. No. 796 (SCJ); Cozzi v. Smith 2015 ONSC 3626, 2015 ONSC 3626 (SCJ).

22I do not find that the respondent’s actions amount to bad faith. However, I believe that her actions were unreasonable. She did not have the right to unilaterally change the school of the child without the consent of the father. I found that her actions of self-help remedies are not to be condoned by the court. Her position that she could move 25 km outside the city of Ottawa in any direction was an unreasonable position to be taken in light of the agreement on joint custody regarding major decisions affecting the child. Further, the respondent was alive to the issue that she needed the consent of the applicant if she wished to change the child’s school. Despite that knowledge, she changed the child’s school without the applicant’s consent.

23The respondent argues that she does not have the ability to pay a cost award and that any cost award ordered would cause her substantial financial difficulty. I have considered the following factors :

(a) limited ability to pay of an unsuccessful party may not be used to shield that party from a liability for cost particularly when a party has acted unreasonably.(Gobin v Gobin 2009 ONCJ 278, 71 R.F.L.(6th) 209 );

(b) the ability to pay may be relevant to the issue of the quantum or scale of costs but not to a party’s entitlement to costs; to help (Izyuk v Bilousov 2011 ONSC 7476, 2011 CarswellOnt 14392); and

(c) courts cannot ignore the best interests of the child and thus cannot ignore the impact of a cost award against a custodial parent that would seriously affect the interest of the child . (Brennan v Brennan 2002 O.J. No. 4743 S.C.J.)

DISPOSITION

24The applicant is entitled to costs on a substantial indemnity basis subject to my discretion as to what is fair, proportional and reasonable. I must balance the competing principles of compensating the successful party for reasonable legal fees while at the same time considering the impact on the losing party who is financially unable to pay costs.

25One of the basic principles in the Family Law Rules is that a party is responsible for the positions taken in court. The respondent was responsible for her position that she was permitted to move to Plantagenet and change the child’s school without the consent of the father.

26The issue as to whether the respondent shall be permitted to move and change the child’s school will inevitably be an issue for a trial judge. My decision is a temporary order in the matter will proceed through the litigation process.

27While I recognize that a cost award will be financially difficult for the respondent, the applicant was required to retain a lawyer and spend legal fees to seek and obtain the relief set out in my decision.

28Based on the circumstances in this case being the father’s entitlement to substantial indemnity, my review of what is fair and reasonable, the respondent being responsible for the position taken at this motion and the respondent’s limited means, I find it fair and reasonable that the respondent pay to the applicant costs fixed in the amount of $8000 inclusive of HST and disbursements.

29With respect to the timing of the payment of the costs, I order the said costs are to be paid within 60 days of the final order on the applicant’s Motion to Change.

Shelston J.