Court File and Parties
COURT FILE NO.: FC-09-587-2 DATE: 2018/05/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Warren John Dennis Stow, Applicant -and- Cynthia Marjorie Davidson, Respondent
BEFORE: Madam Justice D. Summers
COUNSEL: Tanya C. Davies, for the Applicant Rodney B. Cross, for the Respondent
HEARD: October 3, 2017
COSTS ENDORSEMENT
Overview
[1] On November 20, 2017, I granted Mr. Stow’s request for an order appointing the Office of the Children’s Lawyer (“OCL”). He now seeks substantial indemnity costs in the amount of $9,288.00.
[2] Ms. Davidson submits that each party should bear their own costs. She characterizes her opposition to Mr. Stow’s motion as reasonable and states that he behaved unreasonably. She points to the claims made in his Notice of Motion that were not pursued in argument and says his affidavit was unduly inflammatory. Responding to his conduct, she says, caused her to incur extra and unnecessary expense.
Entitlement to Costs
[3] In my view, Mr. Stow’s success on the central issue in the motion engages the presumptive entitlement to costs under R. 24(1) of the Family Law Rules, O. Reg. 114/99 (the “FLR’s”). Moreover, he tried to resolve matters by making an Offer to Settle. The Offer was reasonable but it falls short of invoking the costs consequences of Rule 18(14) because it included provision for an income based adjustment to child support that was not sought in the motion. It is well settled law in Ontario that Offers to Settle are a yardstick by which to measure success and significant in considering both liability for costs and the amount of costs. See Osmar v. Osmar, 2000 CanLII 20380 (ON SC), 2000 CarswellOnt 2343 (S.D.J.).
[4] The presumption that the successful party is entitled to costs under R. 24(1) is subject to sub-rule (4) which allows the court to deprive that party of all or some portion of their costs for unreasonable behaviour. Considering the factors set out in R. 24(5) including Mr. Stow’s conduct in relation to the issues and the fact that he made a reasonable offer, I do not find that the behaviour described by Ms. Davidson rises to the level of unreasonable.
Determining the Amount of Costs
[5] Rule 24(11) sets out the factors to be considered by the court when deciding the amount of costs to be awarded. It states that the court shall consider:
(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.
[6] Here the matter of the OCL appointment was not a complex issue but it was important, if not essential, to assist with a determination of the child’s best interests. Both parties described their parenting relationship as high conflict. It remains my view that their 9 year old daughter has been caught in the eye of their storm for some time now.
[7] Ms. Davidson’s failure to make an Offer to Settle is unreasonable. Offers play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute. A decision not to make an offer is out of step with R. 2 of the FLR’s that imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly. That obligation includes taking appropriate steps to save time and expense. The failure to make an offer will be an adverse factor when assessing costs. See Laing v. Mahmoud, 2011 ONSC 6737.
[8] I have also considered counsel’s hourly rate, each counsel’s Bill of Costs, the time properly spent on the case, and the case law that states costs should be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. See Boucher et al. v. Public Accountants Council for the Province of Ontario 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) and Delellis v. Delellis and Delellis 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345.
[9] For the reasons and considerations set out above, Ms. Davidson shall pay costs to Mr. Stow in the amount of $5,000.00 inclusive of HST. Payment shall be made within 30 days.
Madam Justice D. Summers
Date: May 25, 2018
COURT FILE NO.: FC-09-587-2 DATE: 2018/05/25
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Warren John Dennis Stow, Applicant -and- Cynthia Marjorie Davidson, Respondent
BEFORE: Madam Justice D. Summers
COUNSEL: Tanya C. Davies, for the Applicant Rodney B. Cross, for the Respondent
COSTS ENDORSEMENT
Madam Justice D. Summers
Released: May 25, 2018