CITATION: Kuzyk v. Simeoni, 2017 ONSC 6732
COURT FILE NO.: FS-12-0198-01
DATE: 2017-11-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tamara Dawn Kuzyk (formerly Tamara Dawn Simeoni)
A. Schenk, for the Applicant
Plaintiff
- and -
Michael James Simeoni
T. Nieckarz, for the Respondent
Respondent
HEARD: Via Written Submissions at Thunder Bay, Ontario
Mr. Justice T.A Platana
Decision On Costs
[1] On September 7, 2017, I delivered brief reasons orally dismissing the Applicant’s, Tamara Kuzyk (Simeoni), motion seeking a declaration that the Respondent was acting contrary to a paragraph in the divorce order of Pierce J. dated April 13, 2016, which I found was essentially a term of the Order that could not now be complied with in taking into account the best interests of the child, Evan. These reasons were delivered orally at the time in light of the fact that a hockey draft was to take place within a few days and a determination of this issue was necessary before the draft took place.
[2] When the brief oral reasons were delivered I indicated to the parties that I may explain my reasons further, if the parties requested. I appreciate these comments are not necessary for the determination of costs, but Ms. Kuzyk has so requested. I simply indicate that my fundamental reasoning was that I took into consideration the LMHA policies with respect to the selection of players, and the consideration when a parent is a coach on a particular team. I was satisfied that the Respondent had been his coach previously, although not in the recent season as noted by Ms. Kuzyk in her material. There was nothing to indicate that the Respondent was not a competent coach. The evidence further indicated that he had attempted to gain a coaching position with the team Evan was required to play for as named in the order, and had been unable to do so.
[3] Furthermore, I placed much emphasis on what I accepted as facts agreed to by the parties that Evan was of a calibre to play AA hockey. Even if the father was not coaching another team, there is no guarantee that in accordance with the selection process set out in the LMHA policies, he would have been selected by the team named in the order. He was subject to selection by any hockey team.
[4] Further, I placed much consideration on the agreement that as the father was going to be coaching a different team, it was not in Evan’s best interest in terms of the relationship with his father, or indeed other teams’ coaches, for Evan to be playing an opposing team coached by his father.
[5] Another consideration I took into account is that the only way in which the order would have been complied with is if he had not played AA hockey, a situation which would not have allowed him to more fully develop his talent, and which I am satisfied neither parent wanted for him.
[6] I begin these reasons on costs by noting in particular that the bringing of this motion was justified based on the fact that at the time the divorce order was entered into, neither party appeared to take into consideration that if either child played hockey at an advanced level after the time of the agreement, the Rules of the Lakehead Minor Hockey Association (LMHA) could be a roadblock to the agreement of the parties. I found that, based on the evidence of both parties, Evan has achieved a level of skill that, if the order had been complied with in its strict terms, it would probably have resulted in him playing on a team below his skill level, which I found was not in his best interest.
[7] Essentially, I found that if he were to continue playing hockey at the AA level, the Rules of LMHA could prevent the order from being carried out in any event.
[8] The father now seeks costs.
[9] Ms. Nieckarz relies on Rule 24(5) to argue that the father acted reasonably throughout and there is no reason to deprive him, as the successful party, of costs. She notes that:
he notified the mother well in advance of his intention to coach the team, which triggered the issue;
he provided the mother with the LMHA Rules in advance in order to explain the Rules, and why the paragraph in the divorce could not be complied with;
efforts were made to deal with the issue expeditiously and with least expense;
the issue permitted no middle ground settlement;
the father made an Offer to Settle on September 5, 2017, which was unsuccessful as the Offer included costs to the point of the Offer;
the mother served an Offer to Settle, but it was tied to the father consenting to another issue in the parties dispute.
[10] Ms. Nieckarz argues that the costs claimed are in proportion to the importance of the issues and what should have reasonably been expected for a two hour motion. With respect to the Rule 24(11) factors, she submits the issue was important to the father; the counsel rate claimed of $225.00 per hour is reasonable (actual rate charged to client is $300.00); the total time spent of 20.65 hours, including time in arguing the motion was reasonable.
[11] Ms. Nieckarz requests costs on a partial recovery basis in the amount of $5,471.18, including HST, plus $15.93 (including HST) for disbursements.
[12] Mr. Schenk, for the Applicant Tamar Dawn Kuzyk, submits that in spite of the father’s success on the motion, each party should bear their own costs. He argues that the costs claimed by the father are not proportional to what is reasonable for a non-complex motion lasting approximately two hours.
[13] With reference to Rule 24(11), he submits that the court must fix the amount at some figure between a nominal sum, a full recovery, without any assumption about categories of costs. In this case, he submits that the amount claimed for partial recovery is excessive and, the starting point should be 60% of that amount, or $4,457.24, less any mitigating factors.
[14] He argues that because of the wording in the divorce order, this motion was not frivolous. It required a court finding to give effect to the order in a situation where neither party had not turned their mind to this issue arising when Minutes of Settlement were drafted.
[15] He argues that the Applicant’s position was reasonable considering the wording of the order. He notes that she made an Offer to Settle, which conceded on the hockey issue, if the Respondent conceded on the issue of Christmas. Mr. Schenk submits this was a reasonable position as the two issues were intertwined. He argues the Respondent maintained an inflexible, unreasonable position which prevented settlement.
[16] He further argues that there are unnecessary and inflammatory statements in the Respondent’s affidavit such that, as in Roach v. Roach, 2001 Carswell 454, is a sufficient reason to require him to pay his own costs.
[17] Mr. Schenk further argues that the mother has limited means. He notes her Financial Statement filed in the course of the proceeding between the parties shows her 2016 income at $28,275.26, including spousal support of $12,000.00, with projected 2017 income of $42,000.00. He notes the Respondent’s 2015 income as reflected in the divorce order of $106,087.00. He submits that the disparity in incomes between the parties, and the mother’s modest financial means, militate against a costs award against her. He submits that to make an award in the amount requested by Ms. Nieckarz on behalf of the Respondent, for a non-complex motion, is unreasonable in the circumstances.
[18] If costs are awarded, Mr. Schenk suggests costs be fixed at $2,000.00.
The Law Of Costs
[19] Rule 24 of the Family Law Rules (“FLR”) addresses the issue of costs. Rule 24(1) states that there is a presumption that a successful party is entitled to the costs of a motion. 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.
[20] Modern costs rules are designed to foster three fundamental purposes:
to partially indemnify successful litigants for the cost of litigation;
to encourage settlement; and
to discourage and sanction inappropriate behaviour by litigants:
[21] 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.
[22] In Boucher v. Public Accountants Council (Ontario) (2004), 2004 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.
[23] 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.
[24] 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.
[25] Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(11): Peers v. Poupore, 2008 ONCJ 615, 2008 ONCJ 615 (Ont. C.J.), para. 42; Lawrence v. Lawrence, supra, at para. 35.
[26] 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 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.
Analysis/Decision
[27] In considering the principles of awarding costs and the factors noted in R. 24(11), I find:
The specific and sole issue in this motion was not complex, or particularly difficult from the point of view of presenting argument.
While it was reasonable for the mother to rely on the specific wording of the divorce order, I find some unreasonableness in the position she took in light of being advised early of the nature of the father’s position in light of the LMHA policies. Further, I have considered that her stated concern about where Evan should play hockey should be considered somewhat unreasonable in view of her Offer to Settle which conceded the hockey issue if the father conceded on the issue of Christmas access. I do not agree that the two issues were intertwined as argued by Mr. Schenk and view her offer more as a ‘bargaining chip’.
I accept that Ms. Nieckarz’s requested counsel rate of $225.00 per hour is reasonable considering her actual rate of $300.00.
The time spent of 20.65 hours, while on paper seems reasonable, is somewhat excessive for a motion which took approximately 2 ½ hours to argue.
I have considered what amount of costs a party could have anticipated if unsuccessful. This motion was for a specific issue. There were some affidavits filed attesting to parental behaviour which, in my view, were unnecessary to the determination of this motion, and which contributed to additional costs.
[28] As noted in Boucher, costs should be “a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.” The amount should be fair and reasonable.
[29] In considering the above principles and Rules, I find reasonable costs to be awarded to Mr. Simeoni to be in the amount of $5,000.00 including HST, plus $15.93 for disbursements, including HST.
_____“original signed by”
The Hon. Mr. Justice T. A. Platana
Released: November 15, 2017
CITATION: Kuzyk v. Simeoni, 2017 ONSC 6732
COURT FILE NO.: FS-12-0198-01
DATE: 2017-11-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tamara Dawn Kuzyk (formerly Tamara Dawn Simeoni)
Plaintiff
- and -
Michael James Simeoni
Respondent
DECISION ON COSTS
Platana J.
Released: November 15, 2017
/sab