Superior Court of Justice – Ontario

Court File No.: FS926-02

Applicant(s): Sherry Lynne Glass Counsel: James Zibarras

Respondent(s): Brian Wayne Glass Counsel: Clemens Eggert

Heard: March 27, 2018

Endorsement

ADDENDUM ON COSTS

[1] From my brief four paragraph Endorsement dated March 28, 2018, I have considered the costs submissions of the Applicant and the Bill of Costs as well as the response of the Respondent. The Applicant seeks costs in the amount of $20,462.04 plus disbursements of $285.33 for these combined motions brought by the Respondent. The Respondent submits that the costs of $1,000.00 be reserved to the trial Judge.

[2] The Court’s general discretion to determine costs is set out in s. 131(1) of the Courts of Justice Act. This discretion is subject to the Family Law Rules. Rule 24 of the Family Law Rules governs the issue of costs in respect of family law cases. Rule 18, “Offers to Settle,” is also to be considered in determining costs.

[3] 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. While the Family Law Rules have circumscribed the broad discretion granted in s. 131(1) of the Courts of Justice Act, they have not completely removed a judge’s discretion with respect to costs: C.A.M. v. D.M. sub nom. MacDonald v. Magel, 2003 18880 (ON CA), [2003] O. J. No. 3707 (C.A.). Although Rule 24(1) sets out a presumption that a successful party is entitled to costs, it does not require that a successful party is always entitled to costs. The Judge must ensure that the costs sought are reasonable.

[4] “The first principle respecting costs intra partes is that the Court has an absolute and unfettered discretion to award or withhold costs. The discretion, however, is a judicial one and its exercise must be based on material before the Court”: per Zuker J. in Powers v. Powers, 2004 ONCJ 245, [2004] O. J. No. 4378 (at para. 11). The broad judicial discretion under s. 131(1) of the Courts of Justice Act referred to in earlier cases has been limited and structured by Rule 24. However, as set out in C.A.M. v. D.M., above, the Family Law Rules have not completely removed the judge’s discretion. The principle of proportionality, which is fundamental to any sound costs award, must be applied by both Counsel: Marcus v. Cochrane, 2014 ONCA 207, vary’g in part 2012 ONSC 146.

[5] The motions before the Court on the hearing date sought a broad scope of relief claimed. The Factum filed by the Moving Party confirmed the numerous prayers for relief, and the Responding Party’s Factum addressed all of these. The Court prepared accordingly, and was advised at the hearing that the Moving Party was only now seeking to release the funds from the sale of the Birchgrove property. It thus became obvious based on the documentary evidence filed that the lifting of any security, including the monies held in trust from that sale, was premature. The Moving Party had effectively abandoned the majority of the relief sought (and as was argued in its Factum) without complying with its duty to update the Confirmation of Motion as required by Rule 37.11(3) (the Rules of Civil Procedure apply to civil proceedings in this Court, except for proceedings governed by the Family Law Rules unless provided for in those Rules). As indicated in the Consolidated Practice Direction Concerning Family Cases in the Northeast Region effective May 1, 2016:

“Form 14C Confirmations must only list the specific issues that are to be addressed at the event. They should also indicate which materials the judge should review with clear reference to the specific volume, tab and page numbers of the Continuing Record. Failure to provide this information may result in the materials not being reviewed by the judge or the motion or conference not being heard on that day, and costs consequences.”

[6] When the Court exercises its discretion over costs, “it may take into account any written offer to settle” the motion. I note the correspondence from Counsel for the Applicant dated March 21, 2018 requesting “to adjourning the motion sine die so that we can first deal with the Motion to Change”. The submission is that attempts to resolve the motion by adjourning it sine die, pending the new Motion to Change seeking to change the equalization payment, should be viewed as being equivalent to a Rule 18 Offer to Settle. Counsel for the Respondent submits that nothing would have been settled or shortened had these motions simply been adjourned. The Respondent chose to proceed with these motions, with the result being that I made an Order directing the trial of an issue regarding whether there are in fact support arrears and whether there had been payment of the proper equalization amount.

[7] The emphasis in family law cases is on encouraging the parties to settle disputes. The Applicant did make an effort to at least streamline the necessity of arguing these motions. The Respondent made no effort to resolve their motions or to narrow the issues in a timely fashion; such conduct is unreasonable. And, in my view, the decision that I made at this hearing supports that the offer made by the Applicant on March 21, 2018 was a reasonable one in those circumstances, rendering the hearing of these motions premature and unnecessary at that time.

[8] The costs award should reflect more what the Court views as a fair and reasonable amount that should be paid by the unsuccessful client rather than any exact measure of the actual costs to the successful client. In deciding what is fair and reasonable, the expectation of the parties concerning the quantum of a costs award is a relevant factor. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case.

[9] In essence, there are limits at each step in the litigation based on the principles of proportionality and the reasonable expectations of the parties. I make no specific finding with respect to the amount of time spent or the rates charged by Counsel for the Applicant. In exercising my discretion I have taken into account the time spent, the experience of Counsel and the rates, the result achieved, the complexity of this matter and the conduct of the proceeding, as well as the principle of proportionality. Considering Rule 24, Rule 18, as well as all of these factors and principles, I have determined the fair and reasonable amount.

[10] I therefore exercise my discretion here by ordering that the Applicant is entitled to costs for these combined motions payable forthwith by the Respondent, and fixed in the amount of $7,000.00 all inclusive of fees, disbursements and HST.

Released: June 13, 2018

The Honourable Mr. Justice David J. Nadeau