Darling v. Booth, 2017 ONSC 6261

CITATION: Darling v Booth, 2017 ONSC 6261

COURT FILE NO.: 13-35

DATE: October 20, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DEAN DARLING

– and –

DODI BOOTH

Julie Bergeron, counsel for the Applicant

Self-represented

Pursuant to Written Submissions

costs order

Desormeau, j.

OVERVIEW

[1] The issue that I must determine is that of costs following the Motion to Change the Final Order which was heard on July 21, 2017. I am functus on all other issues raised in affidavits filed by both parties, submitted with their costs submissions.

[2] In my Ruling of August 23, 2017, I invited both parties to provide me with costs submissions, no greater than two pages in length, to address costs for the July 21, 2017 motion, the June 13, 2017 conference, and for the motion that had been set to be heard July 10, 2017 but resolved at the last minute.

POSITION OF THE PARTIES

[3] Ms. Booth’s position is that there have been massive unnecessary costs incurred. She does not quantify her costs, apart from her statement at paragraph 11: “my legal fees resulted in over 60 as repetitive detail was worked….” It is unclear to me if she is trying to convey that she incurred costs of $60,000.00. There is no specificity as to when these costs would have been incurred, particularly given she was self-represented for the conference, and two scheduled motions.

[4] Mr. Darling has provided this court with his costs submissions. He is asking that costs be fixed at $17,475.34. To support same, he submits the following:

a. At the motion, he was seeking 24 claims of relief. Out of these 24 items, 10 of them were regarding access. He indicates that he ultimately received full success in 19 of the 24 claims, one claim was satisfied prior to the Motion, one claim denied, and varying degrees of success on the remaining claims;

b. He has attached a bill of costs, with the first entry from July 19, 2016; and

c. He has attached his offer to settle dated January 10, 2017.

THE LAW

[5] Rule 24 of the Family Law Rules (FLR) addresses the issue of costs. Rule 24(1) FLR states that there is a presumption that a successful party is entitled to the costs of a motion.

[6] Rule 24(11) outlines the factors to be considered in quantifying costs:

(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.

[7] Modern costs rules are designed to foster three fundamental purposes:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behaviour by litigants:

Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (Ont. C.A.), at para. 8; Sickinger v. Sickinger, 2017 ONSC 2612, at para. 11.

[8] Rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met - that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 of the rules: Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.); Lawrence v. Lawrence, 2017 ONCJ 431, at para. 28.

[9] The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2: Lawrence v. Lawrence, supra, at para. 52.

[10] Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Lawrence v. Lawrence, supra, at para. 54.

[11] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.), para. 25; Lawrence v. Lawrence, supra, at para. 31.

[12] In Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), the Ontario Court of Appeal indicated that a costs award should be a "fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant". A "fair and reasonable amount" is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9.

[13] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher v. Public Accountants Council (Ontario), supra.; Lawrence v. Lawrence, supra, at para. 64.

[14] When awarded on a full recovery scale, costs can serve to express the court's disapproval of unreasonable conduct during the litigation: Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA), 2002 CarswellOnt 2263, 2002 C.L.L.C. 210-027, 17 C.C.E.L. (3d) 207, 161 O.A.C. 302, 60 O.R. (3d) 474, 215 D.L.R. (4th) 31(Ont. C.A.), para 76; Lawrence v. Lawrence, supra, at para. 32.

[15] In determining costs, the court must also consider, pursuant to Rule 24(5), reasonableness of the parties. In deciding whether a party has behaved reasonably or unreasonably, the court shall examine:

(a) the party’s 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.

[16] Success is given presumptive pre-eminence in Rule 24. While Rule 24(11)(f) does permit the consideration of ability to pay (under the umbrella of "any other relevant matter"), it is given significantly less prominence than the presumption that costs will follow success: Biant v. Sagoo, 2001 CanLII 28137 (ON SC), 2001 CarswellOnt 3315, [2001] O.T.C. 695, 20 R.F.L. (5th) 284 (Ont. S.C.J.): Lawrence v. Lawrence, supra, at para. 33.

[17] Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(11): Peers v. Poupore, 2008 ONCJ 615 (Ont. C.J.), para. 42; Lawrence v. Lawrence, supra, at para. 35.

[18] The (financial) means of the unsuccessful party may not be used to shield her from liability for costs, particularly when she has acted unreasonably: Gobin v. Gobin (2009), 2009 ONCJ 278, 71 R.F.L. (6th) 209 (Ont. C.J.), para. 24; Lawrence v. Lawrence, supra, at para. 36.

[19] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), 2008 CarswellOnt 2819, [2008] W.D.F.L. 3600, 167 A.C.W.S. (3d) 723, [2008] O.J. No. 1978 (Ont. S.C.J.). The position each party took in the case should also be examined: Lawrence v. Lawrence, supra, at para. 41.

[20] Rule 18(14) sets out the costs consequences regarding Offers to Settle:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(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:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. 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.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).

[21] A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the Family Law Rules: Osmar v. Osmar, 2000 CanLII 20380 (ON SC), 2000 CarswellOnt 2343, 8 R.F.L. (5th) 387, [2000] W.D.F.L. 660, [2000] O.J. No. 2504, [2000] O.T.C. 979 (Ont. S.C.J.), para. 11; Lawrence v. Lawrence, supra, at para. 57.

ANALYSIS

[22] I find that Mr. Darling is the substantially successful party. He is therefore entitled to costs.

[23] Mr. Darling’s bill of costs dates back to July 19, 2016. Interim motions were heard before Justice Leroy on July 18, 2016, and before Justice Laliberté on November 7, 2016. Costs Orders were made regarding these motions on July 18, 2016 and December 7, 2016, respectively, in favour of Mr. Darling. Following the December 7, 2016 Costs Order, court was scheduled for December 20, 2016 regarding Christmas access. Pursuant to Rule 24(10) FLR, I must presume that costs have already been determined regarding these court dates. Further, the time charges for same are beyond the scope of what was requested.

[24] The next court date in this matter was January 19, 2017, where the matter was struck, then April 4, 2017, and April 18, 2017 for a conference to be heard. The April dates were adjourned on consent to the June 13, 2017 Settlement Conference date. I note that as of January 9, 2017, there was preparation for the Settlement Conference that was ultimately heard in June, 2017.

[25] From January 9, 2017 onwards, by my calculations, there are 37.5 hours on the file, rather than the 87.8 hours advanced by Mr. Darling. Further, of those hours, Ms. Bergeron put in 15.2 hours, at $250.00 per hour: $3,800.00; and Ms. Miller, her assistant, put in 22.3 hours, at $120.00 per hour: $2,676.00, plus H.S.T.: $841.88, totalling $7,317.88. The disbursements requested are $1,043.44, inclusive of H.S.T.. The disbursements are not categorized by date, but given the entire contents of the bill of costs, I conclude that some must date back to July 19, 2016, and there may be some duplication from other costs orders.

[26] In determining the quantum of costs, I have taken into account the factors set out in Rule 24(11):

(a) the importance, complexity or difficulty of the issues: While the issues themselves were not significantly complex, they were of great importance to the parties. This was a high conflict file.

(b) the reasonableness or unreasonableness of each party’s behaviour in the case: After reviewing the volumes of materials in support of the Motion, I find that Mr. Darling’s behaviour was reasonable. For reasons set out below, I do not however find that Ms. Booth acted reasonably.

(c) the lawyer’s rates: I note that Ms. Bergeron presented two hourly rates in the bill of costs, and I accept that the increase in her hourly rate took place at the end of the file. Ms. Bergeron has been a lawyer for 18 years, and has significant experience and expertise in family law. I find both her, and her assistant’s, hourly rates are reasonable.

(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: As noted, there were volumes of evidence for me to consider at the motion, which included correspondence between the parties, and numerous attempts to settle this matter. I find that Ms. Bergeron’s time spent on this matter was reasonable. Ms. Booth did not comment regarding the time spent by Ms. Bergeron or her assistant.

(e) expenses properly paid or payable: While the disbursements claimed totalling $1,043.44, inclusive of H.S.T. need to be adjusted, they are nonetheless a reasonable amount.

(f) any other relevant matter: I have considered that Ms. Booth is currently unemployed, and she submits that she is in the process of trying to obtain help in applying for public assistance (“Provincial Assistance”).

[27] I find that Ms. Booth has not behaved reasonably. I make this determination based on the following factors:

a. I have no evidence of Ms. Booth making any Offers to Settle;

b. The Offer to Settle filed by Mr. Darling was reasonable. The Offer was made in January, 2017. Despite this, a Settlement Conference, a motion for summer access, as well as the Final Motion were necessary steps to resolve this matter;

c. The Offer was not accepted by Ms. Booth; and

d. During the course of this Motion to Change, Ms. Booth was ordered to pay costs totalling $11,000.00. Mr. Darling advances that only $375.00 has been paid to date by Ms. Booth. Despite these costs orders, Ms. Booth’s behaviour did not change.

[28] I have reviewed Mr. Darling’s evidence regarding the July 10, 2017 Motion for summer access. Based on the Interim Minutes of Settlement dated July 10, 2017, signed by both parties, in comparison with the Notice of Motion, I find that Mr. Darling was substantially successful.

[29] I have also reviewed Mr. Darling’s Offer to Settle, dated January 10, 2017, served on Ms. Booth on January 11, 2017. Based on the Offer to Settle, on a great majority of the points, Mr. Darling was substantially successful. I must note however that one paragraph in the Offer to Settle is struck out, and not initialed. The Court was not provided the original Offer to Settle. I have no evidence that this was not how the Offer was served on Ms. Booth.

[30] I also note that pursuant to subrule 18(14), in order to be entitled to full recovery of costs from the date of the offer, the party making the offer must obtain an order that is as favourable as or more favourable than the offer. Mr. Darling was substantially successful on the major points of his offer.

[31] Subrule 18(16) F.L.R. grants me the discretion to take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

[32] While I have considered that Ms. Booth does not currently have an ability to pay a costs order, this is but one consideration.

[33] I am mindful that the Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678, at para. 13.

[34] I have considered that Ms. Booth could reasonably have expected to pay costs in the event of lack of success in the litigation, particularly as costs awards have been made against her in this file in the past year. Mr. Darling made it clear in his motion materials that he was seeking $10,000.00 in costs.

[35] After considering the relevant factors, I find that Mr. Darling is entitled to close to substantial indemnity of his costs as he served an Offer to Settle, he was substantially successful, and his behaviour was reasonable while Ms. Booth’s was not.

DISPOSITION

[36] The following Order is made:

a. Ms. Booth shall pay to Mr. Darling costs fixed at $6000.00, inclusive of H.S.T. and disbursements, payable forthwith. The costs award shall bear post judgment interest at the rate prescribed by the Courts of Justice Act, until satisfied; and

b. Counsel for Mr. Darling shall prepare this Order. Approval as to form and content by Ms. Booth is dispensed with.

Justice Hélène C. Desormeau

Released: October 20, 2017

Darling v. Booth, 2017 ONSC 6261

COURT FILE NO.: 13-35

DATE: October 20, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

DEAN DARLING

– and –

DODI BOOTH

COSTS ORDER

Justice Hélène C. Desormeau

Released: October 20, 2017