Armstrong v. Vanneste, 2017 ONSC 7351

CITATION: Armstrong v. Vanneste, 2017 ONSC 7351

COURT FILE NO.: FC-09-2160-2

DATE: 2017/12/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

O’Neill Armstrong Applicant

– and –

Ann Marie Elizabeth Vanneste Respondent

Thomas R. Hunter, for the Applicant

Claudia Bordes, for the Respondent

HEARD: In writing

DECISION ON COSTS

Ryan Bell J.

[1] Mr. Armstrong moved to change the custody and access order of Linhares de Sousa J., alleging that Ms. Vanneste had engaged in parental alienation and had breached the terms and spirit of the order. Following a two day hearing, I determined that there had been no material change in circumstances justifying a variation of the order in the child’s best interests and dismissed Mr. Armstrong’s motion.

[2] My written reasons on the motion invited the parties to make written submissions on the issue of costs in the event they were unable to resolve that issue. Costs submissions have been received from both parties. As the successful party on the motion, Ms. Vanneste seeks an award of costs in the amount of $21,048.51. Mr. Armstrong maintains that costs should be awarded in the amount of $10,000.

The Factors to be Considered in Fixing Costs

[3] The costs rules are designed for the following fundamental purposes: (i) to partially indemnify successful litigants for the costs of the litigation; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants (Serra v. Serra, 2009 ONCA 395, at para. 8).

[4] As the successful party on the motion, Ms. Vanneste is presumptively entitled to an award of costs pursuant to Rule 24 of the Family Law Rules, subject to the factors listed in Rule 24(11) which include: the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour; the lawyer’s rates; the time properly spent on the matter; and “any other relevant matter” (O. Reg. 114/99). Rule 18(14), which deals with offers to settle and the costs consequences of the failure to accept an offer to settle, is also relevant to this matter. An award of costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.

Success on the Motion

[5] There is no dispute that Ms. Vanneste was the successful party on the motion. Mr. Armstrong acknowledges that Ms. Vanneste is entitled to recover her costs but disputes the amount claimed.

Complexity and Importance of the Issues

[6] Both parties agree that the issues on the motion were not legally complex. There is no question, however, that the issues on the motion were of great importance to the parties and involved the best interests of the child. The evidence on both sides was voluminous.

The Behaviour of Each Party

[7] Both parties submit that they acted reasonably in relation to the motion. Ms. Vanneste submits that Mr. Armstrong maintained an unreasonable position, contrary to the child’s best interests. The order of Linhares de Sousa J. was made in the context of a very high conflict matter. As I observed in my reasons for decision, the high conflict situation between the parties continues, with little trust or good will between the parties. Mr. Armstrong’s position on the motion was that Ms. Vanneste had engaged in a course of parental alienation and that her behaviour had adversely impacted his ability to have a meaningful relationship with the child. I found that the child enjoys a strong and loving bond with his father and that there was no evidence that the child’s relationship with his father has been undermined by the current access arrangement. The allegations by Mr. Armstrong of parental alienation were unfounded and lengthened the motion. In my view, they constitute unreasonable behaviour relevant to the determination of costs. Family law litigants are responsible and accountable for the positions they take during litigation (Wang v. Grenier, 2016 ONSC 6939, at para. 26, citing Jackson v. Mayerle, 2016 ONSC 1556, at para. 64).

Offers to Settle

[8] Ms. Vanneste served two offers to settle. In the second offer dated August 31, 2017, Ms. Vanneste offered to increase the time spent by the child with Mr. Armstrong and to incorporate a number of his desired changes to the parenting schedule. The offer was not accepted. Ms. Vanneste seeks her partial indemnity costs to August 31, 2017, and full indemnity costs thereafter.

[9] The court is not required to examine each term of an offer as compared to the terms of the order and weigh with microscopic precision, the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as compared to the order (Wang v. Grenier, at para. 27).

[10] I have no difficulty in concluding that the costs consequences set out in Rule 18(14) apply in this case. Mr. Armstrong’s motion to change was dismissed; Ms. Vanneste obtained an order that is more favourable than her offer to settle. She is entitled to her full indemnity costs from August 31, 2017.

Hourly Rates and Time Spent

[11] The hourly rates for Ms. Vanneste’s counsel are $150 to $200 and their years of call range from 2011 to 2017. In my view, the rates claimed by Ms. Vanneste’s counsel are reasonable, given their experience.

[12] Mr. Armstrong challenges the amount of time spent on the matter by Ms. Vanneste’s counsel. He alleges that: (i) the time spent includes time that was the direct result of Ms. Hubble ceasing to be involved in the file; and (ii) the general nature of the descriptions of time spent precludes a determination of whether the time was spent in relation to other issues unrelated to the motion.

[13] Ms. Vanneste’s position is that the costs claimed do not include approximately 4.5 hours spent by Ms. Bordes familiarizing herself with the file after Ms. Hubble’s departure from the file. With respect to time included in relation to section 7 expenses, child support and scheduling court appearances, Ms. Vanneste’s position is that this work was necessitated by Mr. Armstrong’s motion to change; she maintains that if he had he not pursued his motion, these matters could have been addressed by means other than court attendances. Ms. Vanneste also submits that discussion and drafting of documents for the Office of the Children’s Lawyer were necessitated by the allegations made by Mr. Armstrong.

[14] In my view, time spent by counsel in relation to section 7 expenses and child support is not time that is recoverable as part of an award of costs on this motion. The amount of time spent on issues not directly related to the motion to change is, however, an extremely small proportion of the total time spent on the file. I reject Mr. Armstrong’s argument that excessive time was spent by counsel “getting up to speed” following Ms. Hubble’s departure. I find that the work associated with the involvement of the Office of the Children’s Lawyer resulted from the allegations made by Mr. Armstrong on the motion to change and is recoverable as part of an award of costs on the motion.

Reasonable Expectations of the Unsuccessful Party

[15] The overall objective of the court in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the proceeding (Serra, at para. 12, citing Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3rd) 291 (Ont. C.A.)). A measure of what is fair and reasonable is generally considered to be what the unsuccessful party could reasonably expect to pay as to those costs. The bill of costs provided by Mr. Armstrong’s counsel is in excess of $125,000 on a full indemnity basis and approximately $95,000 on a substantial indemnity basis. On either scale, these amounts are substantially greater than the costs sought by Ms. Vanneste. Based on these figures, I conclude that the costs incurred by Ms. Vanneste are well within the amount reasonably contemplated by Mr. Armstrong.

[16] Rule 24(11)(f) of the Family Court Rules allows the court to take into consideration “any other relevant matter” in awarding costs, which may include the ability to pay (Kearney v. Kearney, 2001 CanLII 26460 (Ont. C.J.)). However, while the ability to pay may be relevant to the quantum of costs, the ability to pay does not override the other factors under Rule 24(11) (Blanchard v. Walker, 2012 ONCJ 799). In my view, given my finding that the costs incurred by Ms. Vanneste are well within the amount reasonably contemplated by Mr. Armstrong as measured by his counsel’s bill of costs, Mr. Armstrong’s ability to pay is of little relevance in determining the quantum of costs.

Disposition

[17] Taking into account all of these factors, I have determined that Ms. Vanneste is entitled to her costs in the total amount of $20,201.01, calculated as follows:

(i) Partial indemnity costs to August 31, 2017 fixed at $14,000;

(ii) Full indemnity costs after August 31, 2017 fixed at $3,750;

(iii) HST on (i) and (ii) of 2,307.50; and

(iv) Disbursements and HST of $143.51.

Madam Justice R. Ryan Bell

Released: December 8, 2017

CITATION: Armstrong v. Vanneste, 2017 ONSC 7351

OTTAWA COURT FILE NO.: FC-09-2160-2

DATE: 2017/12/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

O’Neill Armstrong Applicant

– and –

Ann Marie Elizabeth Vanneste Respondent

DECISION ON COSTS

Ryan Bell J.

Released: December 8, 2017