COURT FILE NO.: FC-17-255
DATE: 2018/06/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Trevor Thomas, Applicant
-and-
Renata Osika, Respondent
BEFORE: Justice J. Audet
COUNSEL: Cheryl Hess, for the Applicant
Adrienne Curran, for the Respondent
HEARD: By written submissions
costs ENDORSEMENT
[1] This motion proceeded before me on March 29, 2018, to deal with the following issues:
a. custody of, and access to, the parties’ child, Carwyn (3 years old);
b. the determination of the school Carwyn would attend in September;
c. ongoing and retroactive child support, including special and extraordinary expenses;
d. ongoing and retroactive spousal support;
e. determination of the mother’s income for support purposes.
[2] I granted the parents joint custody, with divided final decision making authority in specified areas to each parent. I also imposed an equal timesharing residential arrangement for Carwyn pursuant to a 2-2-3 schedule, effective immediately, and directed that Carwyn be registered in the father’s school of choice come September. I also made a detailed order with regards to Carwyn’s extracurricular activities, and ordered the parties to insure Carwyn’s attendance in all of these activities, regardless of the parenting schedule. I declined imputing income to the mother and made an order for child and spousal support ($1,133 and $1,721 per month, respectively) only from January 2018, leaving the issue of retroactive support beyond that date to the trial judge.
[3] The applicant father seeks an award of costs on a full indemnity basis, in the amount of $51,217.01 inclusive of disbursements and HST. He states that the respondent mother has not behaved reasonably and has dragged the matter out, requiring questioning which was very costly. Although she received the father’s motion materials three months prior, the mother only provided her responding materials at the end of January 2018, including a cross-motion with 18 prayers for relief. This required the motion to be adjourned, with resulting costs. The father takes the position that it was also unreasonable for the mother to resist a shared parenting regime in light of the compelling evidence presented, and to insist on a sole custody regime, her choice of school, etc.
[4] The respondent mother seeks costs on a partial indemnity basis, in the amount of $15,242.14. She takes the position that she was the more successful party in the motion, and that her two Offers to Settle (December 2017 and February 2018) contemplated the relief that the father was seeking in his motion. She also argues that the father behaved unreasonably by failing to agree to a timeline for service of materials until he was served with a procedural motion for same, by failing to agree to the sale of the matrimonial home until three days prior to the motion (thus forcing the mother to include that prayer for relief in her cross-motion), and by failing to clearly state his prayer for relief in a properly amended Notice of Motion.
[5] Under rule 24 (1) of the Family Law Rules, O. Reg. 114/99, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. I find that the father was successful on the issues of custody, access, choice of school, and retroactivity of support. The mother was successful on the issue of imputation of income, forcing the child’s attendance at Polish school on the father’s weekends, and spousal support. The issue of child support was not disputed; both parties agreed that it depended on the outcome on parenting matters.
[6] While this might suggest that the parties achieved mixed success on their motion, the most important issues and the ones which occupied the vast majority of the written evidence and oral submissions were the parenting issues; custody, access and the choice of school. The father was the successful party on all those issues and in my view, he is entitled to costs on this motion. I would, however, reduce his entitlement to costs to a certain extent to take into consideration the mother’s success on the issues of spousal support, imputation of income and attendance at activities.
[7] As fully explained in my earlier decision, many of the matters initially raised by the parties’ motion materials were settled the day before to the motion hearing (sharing of holidays, name change, medical coverage, RESP, life insurance and sale of the home), leaving only the issues detailed above to be resolved. Because they were only resolved the day prior to the motion hearing, it is nearly impossible to dissociate the costs associated with these corollaries from the costs associated with the motion itself. Because these issues were resolved, they were not argued before me, and I decline associating success to either party on these issues, as they attempted to get the Court to do in their cost submissions. The costs associated with these issues are part of the overall costs for the motion.
[8] Also, while I accept that the mother did insist on questioning which led to increased costs, I accept that such questioning was related to both the issues raised in the motion as well as the other issues raised in the case (such as property). Therefore, costs related to questioning should be reduced accordingly.
[9] I have reviewed the hourly rates charged by the lawyers who worked on both parties’ files, and find that they were reasonable in light of their respective levels of experience. In particular, I note that the senior counsels’ rates (in the $350-$375 range) and the junior lawyers’ rates (in the $190-$200 range) were similar and reasonable.
[10] I find that the parties spent a comparable number of hours (as a whole) working on their respective clients’ matters (128 hours for the father vs. 136 hours for the mother) for the same steps in the case, although senior counsel for the father worked the majority of those hours herself, whereas junior lawyers and law clerks did a much larger portion of the work (at lower rates) for the mother. In the end, the total for legal fees charged by the father’s counsel (exclusive of disbursements and HST) was $42,175 whereas the total for fees charged by the mother’s counsel was $28,896.
[11] I have reviewed the Offers to Settle exchanged between the parties and find that none of them trigger the cost consequence of rule 18(14). The mother’s December 5, 2017 Offer to Settle did not beat the outcome achieved at the motion, although the access schedule she proposed was very close; and her March 28, 2018 Offer to Settle did not deal with any of the issues that were left for determination in the context of the motion. The father’s only Offer to Settle was made one day prior to the motion hearing and, for that reason alone, would have had a very limited use in relation to costs, but in addition, it did not provide the father with a result as favourable as, or more favourable than, the order made on the issue of spousal support and Polish school.
[12] I also do not find that the parties’ conduct in this case amounted to unreasonable conduct. While it is true that the mother’s position on custody and access was weak, the father’s position on spousal support was equally weak. The mother’s decision to serve her responding materials three months after she was served with a cross-motion, in which she sought significant additional relief, required an adjournment with associated costs. However, the father made his unique Offer to Settle on the eve of the motion hearing.
[13] Overall, I find that success was mixed, although the father was the most successful party on the most litigated issues. I find that the parties did not conduct themselves in a way that could be characterized as unreasonable, although both parties, at times, behaved in ways that did not assist in the due and amicable resolution of this matter. I find that the main issue in this case, parenting, and in particular, the choice of school, was not complex but was very important to the parties. This was made obvious by the massive amount of affidavit material filed by the parties for the purpose of this one day motion and which filled up five volumes of the continuing record. In truth, I find that both parties in this case “went overboard” with the massive amount of materials they filed, which included Books of Authorities containing 48 cases for the applicant, and 32 for the respondent.
[14] The case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, 2013 ONSC 5928 at paras. 5 and 6 and the cases therein referred to). In my view, this principle has particular importance in this case.
[15] In light of all of the above, I find that an award of costs in the amount of $12,000 by the mother to the father, inclusive of disbursements and HST, is reasonable.
Justice J. Audet
Release Date: June 18, 2018
COURT FILE NO.: FC-17-255
DATE: 20180618
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Trevor Thomas, Applicant
-and-
Renata Osika, Respondent
BEFORE: Madam Justice J. Audet
COUNSEL: Cheryl Hess, for the Applicant
Adrienne Curran, for the Respondent
HEARD: By written submissions
costs ENDORSEMENT
Audet J.
Released: June 18, 2018