COURT FILE NO.: F 1761/13

DATE: 2018/08/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Devon Royce Thompson

Applicant

– and –

Kathleen Ann Drummond

Respondent

Self-represented

Debra Bertolo, for the Respondent

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT RESPECTING COSTS

PART I: INTRODUCTION AND POSITION OF THE RESPONDENT

[1] These are my Reasons for Judgment with respect to costs in this case following the completion of a trial that I heard from December 8 to 15, 2017. In my Reasons for Judgment regarding the substantive issues, I ordered that if either party sought costs, they were to serve and file Written Submissions by April 14, 2018. The deadline for Responding Submissions was May 4, 2018, and Reply Submissions were due by May 11, 2018. The Applicant filed Written Submissions seeking costs. The Respondent did not respond to this request for costs and did not seek an extension to do so.

[2] This proceeding was a Motion to Change Final Order which the Respondent commenced on September 30, 2016. The Respondent sought to change the custody, access and child support provisions of the order of Lafrenière J. dated October 8, 2014 (“the order”). That order concerned the two children of the parties’ relationship, namely Skye Elleanor Drummond-Thompson, born November 21, 2009 (“Skye”) and Tavish Julian Drummond-Thompson, born February 15, 2012 (“Tavish”). With respect to child support, the Respondent sought an order increasing the Table amount payable by the Applicant pursuant to the Child Support Guidelines (Ontario), O. Reg. 391/97, as am., effective June 1, 2016, based on increases in his income since that time. In addition, she requested an order requiring the Applicant to pay her a fixed amount of $100.00 per month on account of section 7 expenses for the children. In regard to the custody and access issues, the Applicant sought to change the order as follows:

1. She sought permission to relocate with the children to Deep River, Ontario.

2. She requested that her obligation to consult with the Applicant about the children’s medical and educational needs be terminated.

3. She sought to vary the Applicant’s access, since the existing access regime would not be feasible if she were permitted to move.

4. With respect to travel with the children, she requested that paragraph 11 of the order be changed to require the exchange of particulars for any travel outside of Ontario, rather than Hamilton. For travel outside of Ontario of more than 72 hours in duration, she sought an order requiring the parties to exchange details regarding flight schedules, accommodations and emergency contact information.

5. She requested an order that the parties communicate with each other by email and/or text, and that any communications be limited to issues relating to the children. In addition, she sought a term prohibiting both parties from speaking negatively about the other party in the presence or vicinity of the children.

6. She requested an order clarifying that both parties be permitted to attend the children’s school activities and/or extra-curricular activities.

7. She wished to add a term to the order requiring the parties to advise each other of any changes to their telephone numbers, addresses, email addresses and places of employment at least 30 days prior to any such change occurring.

8. The Respondent also sought an order permitting the children to take their personal items such as clothing, toys and electronics between the parties’ respective homes.

9. Finally, as conditions of the father’s access, the mother sought orders requiring the father to provide a separate bed for each child for access visits, and to ensure that the children are fed nutritious meals while they are in his care.

[3] The Applicant conceded at the commencement of trial that if the children remained in the primary care of the Respondent, the Table amount payable should be adjusted upward in accordance with his income as of June 1, 2016. Notwithstanding this concession, it was necessary to hear evidence respecting his income at trial because he had not provided up-to-date income disclosure. The Applicant opposed the request that he pay a fixed amount of $100.00 per month on account of section 7 expenses. With respect to the custody and access issues, he opposed the Respondent’s request to relocate with the children. In addition, he sought to vary the order to grant him sole custody and primary residence of the children, regardless of whether or not the Respondent was permitted to move. If the Respondent remained in Hamilton, he sought an order granting her access for three weekends out of four, and specified holiday access. He also requested that the following additional terms be incorporated into a final order:

1. He requested an order requiring the consent of the other party for any travel with the children outside of Ontario, and that the other party be given at least 72 hours’ notice of any such travel;

2. He requested an order that the parties must give specifics regarding travel outside of Ontario, including the location of travel, plans, contact information, flight schedules and numbers and any delays or changes in travel;

3. He requested that all access exchanges occur at the Old Navy entrance at Limeridge Mall in Hamilton;

4. He sought an order that any communication between the parties regarding the children be by email, with the exception of emergencies when the parties should be required to communicate directly through telephone. As a corollary, he requested an order that the parties keep each other informed of any changes to their telephone numbers, residential addresses, email addresses and employment upon such changes occurring;

5. He requested an order that the parties inform each other forthwith in the event that they are required to take either of the children to the hospital for emergency reasons;

6. He sought an order that both parties may attend the children’s activities, sports and school trips; and

7. Finally, he wished to include terms that both parties shall be responsible for providing clothing and toys for the children during their time with them, and that items sent to visits be returned to the appropriate party at the end of the children’s time with each party.

[4] I released my Reasons for Judgment in relation to the trial on March 26, 2018. I permitted the Respondent to relocate with the children to Deep River, and I concluded that the Respondent should retain sole custody of Skye and Tavish. I did not terminate the Respondent’s obligation to consult with the Applicant on important matters relating to the children. With respect to access, I granted an order that was substantially in accordance with the access terms which the Respondent had requested. In addition, I included numerous parenting terms in the order which were aimed at addressing the concerns that each party had raised as well as difficulties that I identified based on the evidence that I had heard. With respect to child support, I varied the order by increasing the Table amount payable by the Applicant effective June 1, 2016, but I declined to order the Applicant to pay $100.00 per month for section 7 expenses. I included several provisions to clarify the process that would apply for seeking reimbursement for section 7 expenses.

[5] The Respondent seeks full indemnity costs in the amount of $20,268.38, inclusive of HST and disbursements. She requests that 80% of any costs award be designated as being in relation to support, such that they would be enforceable by the Director, Family Responsibility Office. She submits that she is entitled to costs, since she was clearly the successful party, she acted reasonably throughout the proceedings, and she served Offers to Settle which she states invoke the costs consequences set out in Rule 18(14) of the Family Law Rules, O. Reg. 114/99, as amended. She also argues that the Respondent demonstrated bad faith during the course of the proceeding and the trial, or in the alternative, that he was unreasonable both in his conduct and with respect to the positions that he took. In regard to quantum, the Respondent asserts that a full indemnity costs award is appropriate having regard for the Applicant’s unreasonable conduct and positions. As examples of his misconduct, the Respondent highlighted that the Applicant failed to increase his child support payments after 2014 despite the fact that his income increased, that he did not comply with an order for income disclosure, and that he had still not provided proof of his 2016 and 2017 income as of the date of trial. In addition, she submitted that the Respondent’s claims for sole custody and primary residence were completely without merit, given the limited role that he has played in addressing the children’s needs and the fact that he still did not have a suitable home for the children as of the trial.

[6] For the reasons that follow, I find that the Respondent is entitled to costs of the application, and that the sum of $8,500.00, inclusive of HST and disbursements, is a fair and proportionate amount. Of this amount, I conclude that 50% relates to support, and that the sum of $4,250.00 will therefore be enforceable as support by the Director, Family Responsibility Office.

PART II: THE LAW RESPECTING COSTS

I. GENERAL PRINCIPLES AND PURPOSES OF COSTS AWARDS

[7] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that subject to the provisions of an Act or Rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. This section must be read in conjunction with Rule 24 of the Family Law Rules, which sets out a number of principles to guide the court in the exercise of its discretion in the Family Law context.

[8] The traditional purpose of a costs award was to indemnify the successful party in relation to the expenses they incurred in either defending a claim or in pursuing a valid legal right (Ryan v. McGregor (1926), 1925 CanLII 460 (ON CA), 58 O.L.R. 213 (Ont. C.A.), at p. 216); British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.), at paras 21-24 (“Okanagan Indian Band”), at para. 2. However, the Supreme Court of Canada underlined in Okanagan Indian Band that developments in the law respecting costs have significantly broadened the purpose of costs awards such that they have become a valuable tool for furthering the efficient, orderly and fair administration of justice (at para. 25). For example, the court noted that costs awards are a means of sanctioning parties who refuse to engage in concerted settlement efforts, or who engage in behaviour that increases the duration and expense of litigation or that is otherwise unreasonable or vexatious (at paras. 25-26). The court also established that costs awards are an important tool for ensuring meaningful access to justice for litigants who seek to vindicate a legally sound legal position but who have limited financial means to do so (at para. 26). The Ontario Court of Appeal subsequently reiterated the importance of costs awards as a tool for promoting efficient, fair and meaningful access to justice in Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.) and Serra v. Serra, 2009 ONCA 395 (C.A.). In those cases, the court summarized that modern rules respecting costs aim to foster the following 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.

[9] While these three objectives provide a general framework for the analysis of costs, the courts must also ensure that the law of costs does not become an impediment to the pursuit of justice. Accordingly, in seeking to advance these objectives, the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome cost consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.)).

[10] In addressing the issue of costs, the court must ultimately be guided by the primary objective of the Family Law Rules as set out in Rule 2(2), which is to enable the court to deal with cases justly (Darling v. Booth, 2017 ONSC 6261 (S.C.J.); Lawrence v. Lawrence, 2017 ONCJ 431 (O.C.J.), at para 27; Kukyz v. Simeoni, 2017 ONSC 6732 (S.C.J.), at para. 21). The Court of Appeal has highlighted the discretionary nature of costs awards, and the importance of considering all relevant factors based on the unique facts of each case (Andrews v. Andrews, 1980 CanLII 3619 (ON CA), [1980] O.J. No. 1503 (C.A.)). It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M. (C.A.) v. M. (D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181; 2003 CarswellOnt 3606 (C.A.); Fielding v. Fielding, 2015 ONCA 901 (C.A.)).

II. LIABILITY FOR COSTS

A. Costs Liability to be Determined Ideally After Each Step in the Case

[11] The first issue to be determined in addressing costs is whether either party is liable to pay costs. Rule 24 of the Family Law Rules sets out a number of factors relevant to the preliminary issue of liability. Rule 24(10)(a) establishes that the court dealing with a step in a case should generally determine in a summary manner the issue of liability for costs of that step and set the amount of costs payable. As an alternative, Rule 24(10)(b) permits the court to expressly reserve the decision on costs for determination at a later stage in the case. Notwithstanding these directives, Rule 24(11) expressly provides that the failure of the court to either decide costs or reserve costs relating to a step in the case does not prevent the court from awarding costs in relation to the step at a later stage in the proceeding. This provision clarifies that the court ultimately retains the discretion to go back in time and award costs in regard to previous steps if it is satisfied that it is fair and just to do so having regard for particular dynamics of the case, the purposes of costs awards and the objectives of the Family Law Rules.

B. Factors Relevant to Liability for Costs

1. Degree of Success

[12] Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. This Rule must be considered in conjunction with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)).

[13] If the parties have reached a negotiated resolution of some or all of the issues in their case, costs can nonetheless be ordered if the court determines that one party was more successful overall than the other party (Johanns v. Fulford, [2011] O.J. No. 4071 (S.C.J.); Scipione v. Del Sordo, 2015 ONSC 5982 (S.C.J.), at para. 64). In addition, the court may find a party who has ultimately settled an issue to be liable for costs associated with dealing with the issue if they took an unreasonable approach to the matter and did not settle within a reasonable time. As Pazaratz J. stated in Scipione, at para. 64, a party’s decision to enter into Minutes of Settlement at the end of the litigation journey “doesn’t automatically wipe out any history of bad litigation choices which would otherwise justify costs.”

2. Successful Party May Nonetheless Be Liable for Costs or Denied Costs

[14] The presumption that a successful party is entitled to costs does not apply where that party has acted unreasonably. Rule 24(4) stipulates that a successful party who has behaved unreasonably during a case may be deprived of all or part of their own costs, or may be ordered to pay all or part of the unsuccessful party’s costs. Rule 24(5) sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably, as follows:

Decision on Reasonableness

24(5) 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.

[15] Since costs are ultimately in the discretion of the court, a successful party may be denied costs for reasons other than unreasonable conduct (M. (C.A.)). Rule 24 establishes additional presumptions regarding entitlement to costs that apply regardless of success. Rule 24(7) stipulates that if a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party “unless the court orders otherwise in the interests of justice.”

3. Bad Faith and Liability for Costs

[16] A finding that a party has acted in bad faith will also result in liability for costs as against the offending party, regardless of that party’s success. Rule 24(8) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. This costs provision is subject to the general principle that costs claimed must be reasonable. Bad faith is not simply bad judgment or negligence. As the court stated in Biddle v. Biddle (2005), 2005 CanLII 7660 (ON SC), 137 A.C.W.S. (3d) 1164, it implies “the conscious doing of a wrong because of dishonest purpose or moral obliquity… it contemplates a state of mind affirmatively operating with furtive design or ill will.” Perkins J. described the concept of “bad faith” within the meaning of this Rule in S.(C.) v. S. (M.), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.), aff’d 2010 ONCA 196, [2010] O.J. No. 1064 (C.A.) as follows:

In order to come within the meaning of bad faith in rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court… The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

(See also Scalia v. Scalia, 2015 ONCA 492 (C.A.)).

[17] In Children’s Aid Society of the Region of Peel v. K.J.F. and K.P.F., 2009 ONCJ 252 (O.C.J.), at para. 25, Clark J. further explained that the concept of bad faith within the meaning of Rule 24(8) is not synonymous with bad judgment or negligence. Rather, as he stated, “it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. What this means is that bad faith involves intentional duplicity, obstruction or obfuscation.”

4. The Importance of Offers to Settle in Determining Liability for Costs

[18] Another important consideration in determining both entitlement to and the quantum of costs is whether or not any party has served an Offer to Settle. Rule 18(14) establishes costs consequences for failing to accept an Offer to Settle that complies with the requirements of that Rule. In order for these costs consequences to come into play, the Offer to Settle must be signed by the party making the offer and their lawyer. Failure to comply with this requirement may result in the offer not being a valid formal offer that attracts the consequences outlined in Rule 18(14) (Riss v. Greenhough, 2003 CarswellOnt 1450 (S.C.J.); Jakubowski v. Kopacz-Jakubowski, 2008 CarswellOnt 2149 (S.C.J.)). The costs consequences, and conditions precedent to these consequences, are set out in Rule 18(14) as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

Rule 18(14)

A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[19] With respect to the requirement that the order obtained be as or more favourable than the Offer to Settle, the court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. Rather, it must undertake a general assessment of the overall comparability of the offer as contrasted with the order that was ultimately made (Sepiashvili v. Sepiashvili, 2001 CanLII 25708 (ON SC), 2001 CarswellOnt 3459 (S.C.J.), additional reasons to 2001 CarswellOnt 3316 (S.C.J.); Wilson v. Kovalev, 2016 ONSC 163 (S.C.J.); Jackson). Where the Offer to Settle is not severable, however, the costs consequences set out in Rule 18(14) should only be applied if the judgment is found on a general, overall comparison to be as or more favourable on all issues (Heon v. Heon, 1989 CarswellOnt 318 (Ont. H.C.); Coscarella v. Coscarella, 2000 CarswellOnt 146 (S.C.J.)).

[20] In deciding both liability for and quantum of costs, Rule 18(16) directs that the court may also take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply. In this regard, the court may in the exercise of its discretion compare portions of the Offer to Settle dealing with discrete issues to the terms of the order. A party’s failure to serve an Offer to Settle is also a highly relevant factor in determining both liability for costs and the appropriate amount of a costs award (M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510 (O.C.J.); Menchella v. Menchella, 2013 ONSC 367 (S.C.J.); Potter v. DaSilva, 2014 ONCJ 443 (O.C.J.)). As Zisman J. stated in Potter, at para. 22:

Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs. In my view, it is unreasonable behaviour for a party not to make an offer to settle.

5. Financial Means of the Parties

[21] Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of both liability for costs and the appropriate quantum of a costs award (Murray v. Murray, (2005), 2005 CanLII 46626 (ON CA), 79 O.R. (3d) 147, [2005] O.J. No. 5379 (C.A.); Tauber v. Tauber, 2000 CanLII 5747 (ON CA), [2000] O.J. No. 2133; additional reasons at 2000 CanLII 22280 (ON CA), [2000] O.J. No. 3355 (C.A.); Cassidy v. McNeil, 2010 ONCA 218 (C.A.); Biant v. Sagoo, 2001 CanLII 28137 (ON SC), [2001] O.J. No. 3693 (S.C.J.); M.(C.A.); Clark v. Clark, 2014 ONCA 175 (C.A.)). In most cases, a party’s limited financial means will be relevant to the appropriate quantum of costs and how payment should be effected, and not to the issue of liability for costs (Snih v. Snih, 2007 CanLII 20774 (S.C.J.), at paras. 7-13; Izyuk v. Bilousov, 2011 ONSC 7476, at para. 51). However, the court may decline to order costs against an unsuccessful party if it is clear that the party would be unable to pay the costs, and the practical effect of a costs order would be to destroy any chance that the party may have to achieve financial self-sufficiency (Murray, at para. 10). The financial means of a parent may be particularly relevant in deciding costs if a costs award would indirectly impact a child in a negative fashion (M.(C.A.)). As the Ontario Court of Appeal stated in M. (C.A.), at para. 42, “[i]n fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.”

[22] In determining the weight that should be accorded to a party’s limited financial means in the costs analysis, that party’s overall conduct in the litigation should be considered. Parties who have limited financial means cannot be permitted to litigate with impunity without regard or concern for potential costs consequences at the end of the line. A party’s limited financial means will be accorded less weight if the court finds that they acted unreasonably. As Curtis, J. stated in Mooney, “[i]t must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court.”

6. The General Conduct of the Parties

[23] The decision respecting liability is ultimately a discretionary one that must be informed by the overall conduct of the parties and all of the circumstances and dynamics of the case. One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. A careful consideration of the conduct of the parties is therefore a key component to the costs analysis. The court has an obligation to ensure that litigation is not utilized as a tool to harass parties, and that the resources of the justice system are not unduly drained by unmeritorious claims. As Spence J. aptly stated in Heuss v. Surkos 2004 ONCJ 141 (O.C.J.), at para. 20:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.

III. QUANTUM OF COSTS

A. General Principles

[24] Once liability for costs has been established, the court must determine the appropriate quantum of costs. In Serra, Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), 2005 CarswellOnt 189 (C.A.), the court set out the additional general principles relating to the quantum issue:

1. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.

2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.

3. Amounts actually incurred by the successful litigant are not determinative.

4. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

(See also Selznick v. Selznick, 2013 ONCA 35 (C.A.); Delellis v. Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345 (S.C.J.); Hackett v. Leung, 2005 CanLII 42254 (ON SC), [2005] O.J. no. 4888 (S.C.J.)).

[25] The case-law decided since Serra has emphasized that in determining the appropriate quantum of costs, the court should consider the amount that 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 (S.C.J.); Darling, at para. 12). Polowin J. commented on the general principles respecting the quantification of costs in Sommerard v. I.B.M. Canada Ltd., 2005 CanLII 40140 (ON CA), [2005] O.J. No. 4733 (S.C.J.). She succinctly captured the essence of the quantification exercise based on the principles outlined above as follows, at paras. 53-59:

The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectation of the losing party.

[26] There are no presumptions respecting the quantum of costs in Family Law matters in Ontario apart from the specific provisions in the Family Law Rules discussed below directing the court to order full recovery costs in certain circumstances (Anderson v. Anderson, 2016 ONSC 7774 (S.C.J.)). Furthermore, the court need not find that bad faith or other special circumstances exist to make a costs award approaching substantial or full indemnity (Sordi v. Sordi, 2011 ONCA 665 (C.A.), at para. 21).

B. Factors Relevant to the Quantum of Costs

1. Rules 24(12), 1(8) and 2(2)(3) and (4) of the Family Law Rules

[27] Rule 24(12) prescribes some of the factors which the court should consider in deciding the appropriate quantum of costs, as follows:

Setting Costs Amounts

24 (12) In setting the amount of costs, the court shall consider,

a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

i. each party’s behaviour,

ii. the time spent by each party,

iii. any written offers to settle, including offers that do not meet the requirements of rule 18,

iv. any legal fees, including the number of lawyers and their rates,

v. any expert witness fees, including the number of experts and their rates,

vi. any other expenses properly paid or payable; and

b) any other relevant matter. O. Reg. 298/18, s. 14.

[28] Rule 24(12.1) stipulates that any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. In considering the quantum of costs, the court should also consider Rule 1(8), which provides that the court may respond to a failure to follow the Rules or abide by an order by making an order for costs, and Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly (Mooney v. Fast, 2013 CarswellOnt 15659 (O.C.J.)). Rules 2(3) specifically itemizes ways in which cases are dealt with justly at each stage of the litigation, including the costs analysis, as follows:

Dealing with Cases Justly

(3) Dealing with a case justly includes,

a) ensuring that the procedure is fair to all parties;

b) saving expense and time;

c) dealing with the case in ways that are appropriate to its importance and complexity; and

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

[29] Rule 2(4) directs that the court must apply the Family Law Rules to promote the primary objective, and that parties and their lawyers have a duty to help the court to promote the primary objective.

2. The Appropriateness, Reasonableness and Proportionality of the Amounts Claimed

[30] As a starting point in determining the appropriate quantum of costs, the court has an obligation to review the specifics of the Bill of Costs to assess the reasonableness of the amounts requested and whether items claimed are properly the subject of a costs award (Donnelly v. Donnelly, 2004 CarswellOnt 2076 (S.C.J.); Snelgrove v. Kelly, 2017 ONSC 4625 (S.C.J.)). The court must as part of this process consider whether all of the items claimed actually relate to the proceeding in question, and whether the hours spent can be reasonably justified (Pagnotta v. Brown, [2002] O.J. No. 3033 (S.C.J.); Murphy v. Murphy, 2010 ONSC 7204 (S.C.J.); Jackson; Snelgrove). However, this analysis should be undertaken in a global fashion. The court is not required to embark upon a painstaking, line-by-line analysis of Bills of Costs and second guess every hour and item claimed, unless there are clear concerns about excessive claims and overreaching (Docherty v. Catherwood, 2016 ONSC 2140 (S.C.J.), at para. 50; Snelgrove).

[31] The court’s decision on the appropriate quantum of costs must also be informed by the principle of proportionality. This factor is now specifically highlighted in Rule 24(12) as a key component of the framework surrounding the costs analysis. As Pazaratz J. highlighted in Jackson, the Supreme Court of Canada recognized in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7 (S.C.C.) that timeliness, affordability and proportionality are essential components of a legal system that ensures true access to justice. In the context of the costs analysis, these factors require the court to ensure that expenses claimed make sense having regard for the importance and complexity of the issues that were litigated. If the case was complicated and involved novel or important issues, the principle of proportionality may support a higher award (L.(J.K.) v. S.(N.C.), 2009 CarswellOnt 1017 (S.C.J.), at para. 34; Goodwin v. Goodwin, 2011 ONSC 2402 (S.C.J.), at para. 35).

[32] A useful benchmark for determining whether costs claimed are fair, reasonable and proportional is to consider the amount of time and fees that the other party has incurred in the matter (Smith Estate v. Rotstein, 2011 ONCA 491 (C.A.); Durbin v. Medina, 2012 ONSC 640 (S.C.J.); Scipione v. Del Sordo, 2015 ONSC 5982 (S.C.J.)). Rule 24(12) now clearly indicates that the time and fees spent by all parties is relevant to the analysis. Although there is no requirement that a party resisting costs file their own Bill of Costs, it is preferable that they do so to assist the court in dealing with costs in a fair and reasonable manner (Risorto et al. v. State Farm Mutual Automobile Insurance Co., 2003 ONSC 43566 (S.C.J.), at para. 10). Failure on their part to provide details regarding their own costs is a factor that the court may take into account in considering the reasonable expectations of the losing party, and may entitle the court to draw an adverse inference (Smith Estate, at para. 50; Scipione, at para. 126; 206637 Ontario Inc. (c.o.b. Balkan Construction) v. Catan Canada Inc., 2013 ONSC 5448 (S.C.J.), at para. 7). Consideration of the other party’s Bill of Costs is particularly helpful if that party challenges a costs claim on the basis of alleged excess and over-lawyering (Mullin v. Sherlock, 2017 ONSC 6762 (S.C.J.), at para. 89; Brar v. Brar, 2017 ONSC 6372 (S.C.J.), at para. 30; Bielak v. Dadouch, 2017 ONSC 4255 (S.C.J.), at para 10). As Winkler J. stated in Risorto, at para. 10, such allegations amount to “no more than an attack in the air” if the unsuccessful party fails to produce their own Bill of Costs. In addition, a significant discrepancy in the amount of fees that the parties have incurred may prompt the court to embark upon a more detailed scrutiny of the costs claimed to ensure that the amount meets the overall objectives of a costs order (Jackson, at para. 99).

3. Offers to Settle

[33] As discussed above, Rule 18(14) relating to formal Offers to Settle is also relevant to quantum of costs. Rule 18(15) specifies that the burden of proving that the order which the court has granted is as favourable as or more favourable than the Offer to Settle is on the party who claims the benefit of subrule (14). If an Offer to Settle does not meet the formal requirements of Rule 18(14), the court may nonetheless take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms (Rule 18(16)). A party’s failure to serve an Offer to Settle may also be viewed as an adverse factor in determining the quantum of costs (M. (J.V.)). This is so even if the party was the successful litigant (Smith v. Smith, 2007 CarswellOnt 1538 (S.C.J.)).

[34] The costs consequences set out in Rule 18(14) do not automatically apply when the requirements set out in the Rule are satisfied. The Rule simply establishes a rebuttable presumption regarding costs, and the court ultimately maintains the discretion to determine whether the costs consequences are appropriate having regard for all of the circumstances of the case (M.(C.A.); Cole v. Freiwald, 2011 CarswellOnt 10517 (O.C.J.)).

4. Bad Faith and General Conduct of the Parties

[35] As I have already noted in my discussion respecting liability for costs, Rule 24(8) directs the court to order costs against a party who has acted in bad faith. This Rule is also critical to the issue of quantum of costs, since it specifically requires that costs be awarded on a full recovery basis and payable immediately. The full recovery portion of the award should relate to the issues affected by the bad faith. Once the full recovery analysis is complete with respect to those issues, the court should assess costs in relation to the other issues by considering the overall circumstances of the case in light of the factors outlined in Rule 24(11), and should use the discretion permitted by that section to reach a correct overall result (Hunt v. Hunt, 2001 CarswellOnt 4548 (S.C.J.); Likins v. MacKenzie, 2003 CarswellOnt 3007 (S.C.J.); additional reasons at 2004 CarswellOnt 2157 (S.C.J.); Snelgrove).

[36] The general conduct of the parties is one of the major factors in determining costs, even if their conduct falls short of bad faith. As Campbell J. highlighted in Parsons v. Parsons, 2002 CarswellOnt 2536 (S.C.J.):

[W]hen the respondents have acted unreasonably, the applicants should not have to financially "pick-up" or absorb the result of those respondents' impulsive and punitive decisions. While the court recognizes that costs orders may "fan the fires", I interpret the rules as recognizing that there must be consequences for unreasonableness.

There is an element of behaviour modification to a costs order in that it encourages a change in attitude from a "litigate with impunity" mindset.

[37] In assessing the parties’ overall conduct, the court should consider Rule 24(5), discussed above, which sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably. Evidence that a party engaged in litigation conduct that was disrespectful of the other participants or the court, which unduly complicated the proceedings, which needlessly increased the cost of the litigation or which was otherwise unreasonable may lead to increased costs consequences (Parsons, at para. 14). Similarly, a high or full recovery costs award may be justified where a party persists in advancing unreasonable claims (Lawrence, at paras. 58-60; Westendorp v. Westendorp, 2000 CarswellOnt 2047 (S.C.J.), at para. 4; Ojo v. Ojo, 2005 CarswellOnt 1239 (S.C.J.), at para 16). By contrast, evidence that a litigant “behaved in ways that saved time and expense and minimized strain on the court’s resources” will militate in that party’s favour in the costs analysis (Cornwall v. Jevons, 2015 ONCJ 772 (O.C.J.), at para. 1).

5. The Meaning of “Full Recovery Costs” Under the Family Law Rules

[38] The reference in Rules 18(4) and 24(8) to “full recovery” costs has led to discussion about the precise meaning of this phrase. This phrase is distinct from the “scales” or “ranges” for costs awards referred to in the Ontario Rules of Civil Procedure, namely “partial indemnity costs,” “substantial indemnity costs” and “full indemnity” costs. It is also distinct from the phrase “solicitor and client costs” that is referred to in some court Rules. The Family Law Rules do not make reference to these scales, and the civil Rules do not include definitions for any of these terms. Many judges determining the issue of costs in Family Law matters refer to the ranges used in the civil context in exercising their discretion regarding costs. While reference to these scales may provide guidance in deciding costs in Family Law litigation, it is not required under the Family Law Rules or by the case-law. In Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (S.C.J), Aston J. held that the concept of scales of costs that applies in the civil context is not the appropriate way to quantify costs under the Family Law Rules. In his words, “[h]aving determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery. The Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs.” The Ontario Court of Appeal supported this approach in M.(C.A.), and the Ontario Divisional Court followed suit in Costa v. Perkins, [2012] O.J. No. 2400 (Div. Ct.).

[39] With respect to the term “full recovery” costs referred to in the Family Law Rules, the question has arisen as to whether this phrase refers to the full amount which a party claims, subject to adjustments based on reasonableness, or something between the concept of “substantial indemnity” and the full amount claimed and (see Mary Jo Maur and Nicholas Bala, “Re-thinking Costs in Family Cases: Encouraging Parties to Move Forward,” paper presented at the National Family Law Program, July 2014, Whistler, British Columbia.). I interpret the term “full recovery” as referring to the full amount which the party has claimed, subject to any adjustments that the court considers appropriate based on the reasonableness and proportionality of the costs claimed. In other words, it means the total reasonable and proportional amount that a court determines the party should have spent in dealing with the case (Jackson, at para. 91). This conclusion accords with the case-law in the civil context which has interpreted the phrase “full indemnity costs” (Toronto Standard Condominium Corporation v. Baghai Development Ltd., [2012] O.J. No. 2746 (C.A.)). While the Family Law Rules outline certain circumstances in which full recovery costs are appropriate, the court is not limited to making a full recovery award in those specified situations (Sims-Howarth). It is ultimately a matter of the court’s discretion to determine whether full recovery is appropriate having regard for the particular circumstances of the case.

6. Degree of Success in the Case

[40] As I have indicated, success in the proceeding is a critical factor in determining costs. If the case involves numerous issues, it is important both for liability and quantum purposes to consider whether one party was overall more successful than the other(s). If one party was indeed overall the most successful litigant, the court is entitled to make adjustments to the costs award to take into account that party’s lack of success on certain issues in the proceeding. The nature and extent of the adjustments will be a matter of discretion and will depend in part on the nature, importance and complexity of the issues on which the party was unsuccessful (Eastern Power Ltd., at para. 18). The court should adopt a broad and flexible approach in making such adjustments. It is not appropriate to engage in a detailed costs analysis respecting each separate issue and then tally up an ultimate “costs score-sheet.” The Ontario Court of Appeal cautioned against adopting this type of approach to formulating a costs order, which it referred to as a “distributive costs award,” in Oakville Storage and Forwarders Ltd. v. Canadian National Railway, 1991 CarswellOnt 440 (C.A.), stating that it found it difficult to imagine a situation in which this approach to the analysis of costs may be appropriate. It emphasized the importance of scrutinizing the success of each of the parties on particular issues in a case, but concluded that this analysis is more appropriately undertaken as part of the general exercise of discretion respecting costs, taking into consideration the factors outlined in the applicable Rules. In Skye v. Matthew, 1996 CarswellOnt 37 (C.A.), the court reiterated its caution about resorting to distributive costs orders, and expressed concern that such awards undermine the purposes of Offer to Settle provisions in court Rules, which are result-oriented rather than issue-driven. The Court of Appeal has clearly indicated that the use of distributive costs awards should be restricted to “the rarest of cases” (Eastern Power Ltd., at para. 18; Murphy v. Alexander (2004), 236 D.L.R. (45h) 302 (C.A.); Armak Chemicals Ltd. v. Canadian National Railway Co. (1990), 1991 CanLII 7060 (ON CA), 5 O.R. (3d) 1 (C.A.)).

[41] While a party’s overall degree of success in the case is a critical element of the costs analysis, a more tempered approach to costs against the less successful party may be appropriate in custody cases depending on the circumstances of the case. The rationale for this is that parties should not be discouraged from advancing bona fide custody or access claims that could have merit out of fear of possible deleterious financial consequences (Weaver v. Tate, 1989 CarswellOnt 330 (H.C.)).

7. Financial Means of the Parties

[42] As I have indicated, the financial means of the parties is a relevant factor to both liability for costs and the quantification of an award. Costs awards must take into consideration the reasonable prospects of a party being able to pay and the impact of an award on the ability of the party to meet their basic needs and those of any children in their care. However, a litigant’s limited financial means will be given less weight in the costs analysis than the court’s determination regarding overall success in the litigation (Biant; Gobin v. Gobin, 2009 CarswellOnt 3452 (O.C.J.)). Furthermore, ability to pay alone cannot override the other factors set out in Rule 24(11) (Peers v. Poupore, 2008 ONCJ 615 (O.C.J.)). A party’s limited financial means will also be accorded less weight in quantifying costs if the court finds that the party acted unreasonably.

8. Whether a Costs Award Can Include Costs Associated with Pursuing Costs

[43] As part of its discretionary authority respecting costs, the court may include as a component of a costs award the expenses and disbursements associated with pursuing the costs claim (C.(K.D.) v. C. (M.C.), 2007 ONCJ 210 (O.C.J.); Johanns v. Fulford, 2010 CarswellOnt 10903 (O.C.J.); Hesketh v. Brooker, 2013 ONSC 5433 (O.C.J.); Beaver v. Hill, 2018 ONSC 3352 (S.C.J.)). A request for costs relating to the preparation and advancement of a costs argument should be made as part of the general submissions respecting costs of the hearing in question, unless there are exceptional circumstances which satisfy the court that procedural and substantive justice cannot be achieved unless a separate costs hearing is held (C.(K.D.); Johanns; Osmar v. Osmar, 2000 CanLII 20380 (ON SC), [2000] O.J. No. 2504 (S.C.J.)).

IV. ENFORCEMENT OF COSTS BY THE FAMILY RESPONSIBILITY OFFICE

[44] The Respondent requests that any costs award be designated as arising in relation to support. The consequences of such a designation include that the costs award would be immune from discharge in a bankruptcy by virtue of s. 178(1)(c) of the Bankruptcy Act, R.S.C. 1985, c. B-3, and would be enforceable by the FRO pursuant to the FRSAEA. With respect to enforcement, the relevant legislative provisions are sections 5(1) and 1(1)(g) of the FRSAEA. Section 5(1) provides that it is the duty of the Director of the FRO to enforce support orders where the support order and the related support deduction order are filed in the Director’s office, and to pay the amounts collected to the person to whom they are owed. Section 1(1) of the Act includes the definition of “support order.” Section 1(1)(g) provides as follows:

1 (1) In this Act,

“support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance

[45] Trial and appellate courts have the authority to designate costs orders as arising in relation to support within the meaning of section 1(1)(g) of the FRSAEA and as such, that they be enforceable by the Director of the FRO (Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731, 164 O.A.C. 241, 61 O.R. (3d) 711 (C.A.), at para. 16; Wildman v. Wildman, 2006 CanLII 33540 (ON CA), 2006 CarswellOnt 6042, 215 O.A.C. 239 (C.A.), at para. 56). The broad purpose of section 1(1)(g) is to support efforts to provide children with the financial support that they require to meet their basic needs in a timely manner. The section provides some assurance to parents who pursue support rights on behalf of their children that they will receive assistance in recovering costs which they have incurred in carrying out this task. In applying section 1(1)(g), the courts should interpret it broadly and in a manner that advances its child-focussed purpose.

[46] A judge addressing the issue of costs has a wide scope of discretion in deciding how to deal with a request that legal costs be designated as arising in relation to support. The need for discretion is particularly compelling in cases involving numerous Family Law issues in addition to support matters. In such circumstances, the judge may estimate the portion of the costs award that pertains to the support issue and designate that portion of the award as being enforceable by the FRO. Alternatively, the court may designate the entire costs order as arising in relation to support if the principal issues related to support and the court is satisfied that it is impractical and inappropriate to dissect the costs claim to determine which parts relate to the support aspects of the proceeding (Stancati v. Stancati (1984), 1984 CanLII 1775 (ON CJ), 49 O.R. (2d) 284 (Prov. Ct.), at 287; Wildman, at para. 59; Hatcher v. Hatcher, [2009] W.D.F.L. 5320 (Ont. S.C.J.), at para. 33; Sordi, at para. 25; Clark , at para. 81; Campbell v. Campbell, 2017 ONSC 3787 (S.C.J.), at para. 336; Beaver, at para. 69).

[47] The designation of a costs award as being enforceable by the FRO is contingent on the court being satisfied that the costs arose “in relation to support” within the meaning of section 1(1)(g) of the FRSAEA. In order to fall within the scope of this section, the costs must in some way relate to the advancement of a support claim in the proceeding (Clark at para. 68). Accordingly, it is an error to designate a costs award as being in relation to spousal support if the litigant in whose favour the order is made has not advanced such a claim in their application, or if the step in the case had no connection to any support claims (Clark; Cline v. Moran, 2016 ONSC 6859 (S.C.J.), at para. 7). However, the costs in question need not necessarily relate to the hearing and adjudication of a support claim for the costs to fall within the scope of section 1(1)(g). They may pertain to a case management step in the case in which the issue of support was addressed (Meidell v. Meidell, 2013 ONSC 438 (S.C.J.); Beaver, at para. 70). Furthermore, costs relating to a step in a case can be characterized as “arising in relation to support” notwithstanding that the issues of entitlement and quantum of support were not specifically argued and adjudicated upon at that stage, provided that the step was taken to enable the party to advance and pursue their support claims in a fair and just manner (Writer v. Peroff, 2006 CarswellOnt 6438 (S.C.J.); aff’d 2006 CarswellOnt 6218 (C.A.), at paras. 3-4).

PART III: ANALYSIS

[48] Upon carefully considering the legal principles outlined above and the Written Submissions of the Respondent, I conclude that the Applicant is liable for costs, and that the sum of $8,500.00, inclusive of HST and disbursements, is a fair and reasonable costs award in this case. Of this amount, I am designating the sum of $4,250.00 as being in relation to support and enforceable by the Director, Family Responsibility Office.

[49] Dealing first with liability for costs, I have no difficulty concluding that the Respondent is entitled to costs. She was successful in obtaining most of the relief that she requested in this litigation, and she is therefore presumptively entitled to costs by virtue of Rule 24(1). By way of overview of her success:

1. She opposed the Applicant’s requests for sole custody and primary residence of the children, and my order left her with sole custody and primary residence.

2. She obtained an order permitting her to relocate with the children to Deep River.

3. She obtained an order specifying days and times for the Applicant’s access time until she and the children moved to Deep River.

4. The access regime that I ordered following the move to Deep River was substantially in compliance with the regime that she requested. I granted the Applicant additional weekend visits in February, May, September and November each year, but the Respondent indicated at trial that she would not have a problem with such additional weekend time. With respect to Christmas, the Respondent was willing to grant the Applicant access for the first part of the Christmas holiday period each year, including Christmas Eve and Christmas Day. I concluded that this was not in the children’s best interests and I granted the Respondent the first half of the holiday period in alternate years, including Christmas Eve and Christmas Day.

5. I did not accede to the Respondent’s request to terminate her obligation to consult with the Applicant on significant issues respecting the children. However, I included numerous terms in the order which were aimed at resolving communication difficulties that had arisen between the parties.

6. I included detailed provisions in the order dealing with the Applicant’s notice requirements if he could not exercise access, outlining when make-up access could be requested and the process for arranging make-up visits. These terms were included due to concerns about the Applicant arranging, cancelling and changing visit times on short notice to the Respondent.

7. I granted the Respondent’s request to include numerous additional parenting terms in the order to resolve various challenges that had arisen between the parties.

8. I ordered that the Applicant’s overnight access was conditional on him providing proof that he had established separate bedrooms for the children, obtained beds for them, and had made appropriate child care arrangements for them for periods when he is required to work.

9. The Respondent was also successful in obtaining a significant increase in the Table amount of support payable by the Applicant commencing June 1, 2016. My order also specifically ordered the Applicant to increase the Table amount on an ongoing basis if his income increases in the future.

[50] In deciding the issue of liability, I have also considered the Respondent’s overall conduct in the litigation and the reasonableness of the positions that she took. I conclude that she acted in an extremely reasonable and fair manner throughout the proceedings. Although the proposed move to Deep River was deeply upsetting to the Applicant, she agreed to a very generous access regime that would involve a considerable amount of effort and cost on her part to implement. I concluded that she had very sound reasons for the proposed move, and I had no difficulty finding that the move was in the children’s best interests. The Respondent did not engage in any inappropriate litigation steps, and she did not call any unnecessary witnesses at trial. Counsel for the Respondent adopted a reasonable and efficient approach to the trial.

[51] I have also considered the Applicant’s conduct and positions in this matter in deciding the issue of liability. It is understandable that the Applicant was upset about the proposed move. However, the position which he took in the litigation was in my view extremely unreasonable. I concluded that there were no grounds whatsoever to support a change in custody or primary residence of the children. I also found that the Applicant had often taken a high-handed and unfair approach to the issue of his access after the October 8, 2014 order was made. While the move to Deep River would clearly affect his regular access with Skye and Tavish, the regime of access that the Respondent proposed also allowed for him to have much more extensive overnight access. Although the Applicant sought primary residence of the children, it was abundantly clear that he had no reasonable plan in place to carry out this proposal. He had been unable to have any significant overnight access with the children up until the time of trial because he had not taken steps to either change his work schedule or secure a new position that would allow him to accommodate overnight visits. With respect to the trial, the Applicant persisted in adducing extensive evidence about the history of the parties’ relationship and parenting of the children, right from the time of the children’s birth. This added unnecessarily to the time and expense of the trial, since all of this evidence pre-dated the October 8, 2014 order. Furthermore, he attempted at trial to place all responsibility on the Respondent for problems that had arisen between the parties regarding parenting. I concluded that both parties were responsible for most of the difficulties, but that the Applicant was in fact primarily responsible for many of the problems that had developed. In addition, although child support remained an issue for trial, the Applicant had still not produced proof of his total 2016 and 2017 income as of the trial. All of these considerations support a finding of liability for costs.

[52] I appreciate that the Applicant’s income is modest. His estimated current annual income is $29,638.00. I have weighed this factor in the deciding liability for costs. If the Applicant had acted reasonably and adopted fair positions, his limited financial means may have led me to conclude that he should be spared the burden of a costs award. However, I conclude that a costs sanction is warranted in this case based on the concerns outlined above respecting the Applicant’s conduct and positions in the litigation.

[53] Turning to the appropriate quantum of the costs award, the sum of $8,500.00 is much less than the Respondent has requested, but is nonetheless a very large amount having regard for the Applicant’s financial means. My decision to grant less than the full indemnity amount which the Respondent has requested is based on the following considerations:

1. Although the Applicant’s conduct and positions taken in the litigation were unreasonable, they do not in my view meet the test for a finding of bad faith within the meaning of the Family Law Rules. With respect to the child support issues, the Applicant eventually agreed to an increase in his support obligation. With respect to the custody and access issues, the Applicant was fuelled to a large extent by the recommendations of the Clinical Investigator from the Office of the Children’s Lawyer, who recommended against the Respondent being permitted to move. Having regard for these recommendations and the significant impact which the proposed move would have on his regular time with the children, it was understandable that he would chose to proceed to trial on the custody and access issues.

2. I have given significant weight to the Applicant’s limited financial means. The Applicant testified that he was struggling greatly to meet his daily needs, and as of the trial, he had still not been able to purchase beds for the children. I am satisfied that any award of costs will greatly impact his ability to meet his own basic needs and those of the children when they have access with him. An award in excess of the amount that I am allowing would in my view cripple the Applicant financially in the long term. In fact, I am not satisfied that he would ever be able to pay off a higher amount.

3. I have taken into consideration the fact that the Respondent contributed to many of the difficulties that developed between the parties with respect to parenting matters. As I indicated in my Reasons for Judgment, the Respondent was at times controlling and disrespectful to the Applicant in dealing with access matters. She was also frequently late for access exchanges, and there were occasions when she did not consult with the Applicant about important issues involving the children. In addition, her initial response to the children’s sexual abuse allegations against her brother was inappropriate. These concerns about the Respondent no doubt contributed to the Applicant’s decision to oppose the move to Deep River and pursue custody and primary residence of the children.

4. I have considered the Respondent’s formal Offer to Settle dated July 13, 2017. I am not satisfied that the terms of the Offer were as favourable as or more favourable than the terms set out in my order dated March 26, 2018. For example, I did not terminate the Respondent’s obligation to consult with the Applicant, and I granted the Applicant four more weekend visits each year than the Offer provided for. Accordingly, I am not satisfied that the Offer to Settle engages the costs consequences set out in Rule 18(14) of the Family Law Rules. In any event, even if the Offer had satisfied the requirements of this Rule, I would have exercised my discretion to depart from the costs consequences set out in that Rule based on the importance of the custody and access issues to the Applicant, the OCL’s recommendations upon which he relied heavily in advancing to trial and the Applicant’s limited financial means.

5. I have carefully considered the Respondent’s Bill of Costs, and I have concerns regarding some of the items set out therein. In particular, the Respondent claims costs at this stage in relation to numerous steps that occurred during the course of the litigation. While the recent amendments to Rule 24 of the Family Law Rules permit me to grant costs relating to previous steps, they also reflect a clear preference that costs be addressed at each stage of the litigation, or in the alternative that costs be specifically reserved. If a litigant pursues costs of previous steps after the completion of trial, it is incumbent upon them to provide the trial judge with a detailed summary of each step, the positions that each party took at each stage, and fulsome submissions regarding the considerations which the party feels should guide the court’s determination of costs for each step. The Respondent has not provided these details respecting various steps for which she now seeks costs, including a motion which her counsel prepared in October 2016, the case conference and the settlement conference. Furthermore, many of the dockets relating to these steps include time spent on other tasks, and it is therefore exceedingly difficult to obtain an accurate sense of how much time was spent on each task.

[54] While my costs award is much less than the Respondent has requested, it is nonetheless very significant given the Applicant’s financial situation. My decision to impose a costs award that will ultimately be very onerous on the Applicant is based largely on my conclusions outlined above regarding the Applicant’s unreasonable conduct and positions in this litigation. I have also taken into account the Applicant’s failure to respond to the Respondent’s Offer to Settle, his failure to serve his own Offer to Settle, his failure to comply with an order for financial disclosure and his failure to file Responding Costs Submissions.

[55] In reaching my decision respecting the quantum of costs, I have considered the amount of time that the Respondent’s counsel spent on the case and the fees which she charged. The time spent and amounts charged are all reasonable and proportionate. The Bill of Costs includes time spent to pursue costs, and I am satisfied that the Respondent should be reasonably reimbursed for that time.

[56] With respect to the Respondent’s request that 80% of the costs award be designated as relating to support, I do not consider the percentage requested to be appropriate. Although a significant amount of time would have been spent addressing child support issues prior to trial, the majority of the trial time was devoted to the custody and access issues. Overall, I estimate that 50% of the costs award relates to the support issues, and I am therefore designating the sum of $4,250.00 as being in relation to support.

[57] The Applicant will no doubt have considerable difficulty paying this costs award. In order to ensure that he is able to meet his basic needs and those of Skye and Tavish when they have access with him, it is necessary to implement a reasonable payment plan for the costs. In the absence of Submissions from the Applicant, it is necessary for me to estimate how much the Applicant may be able to manage on a monthly basis. In reaching a fair and reasonable amount, I must also consider the significant amount of the award. Upon weighing these considerations and the evidence that I heard at trial respecting the Applicant’s financial means, I conclude that he should pay the costs award at the rate of $200.00 per month, plus garnishment of any federal and provincial government refunds and credits payable to him.

PART IV: TERMS OF ORDER TO ISSUE

[58] Based on the foregoing, an order shall issue as follows:

1. The Applicant shall pay the Respondent costs in the amount of $8,500.00, inclusive of disbursements and HST. Of this amount, the sum of $4,250.000 relates to support within the meaning of section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, and as such, is enforceable by the Director of the Family Responsibility Office.

2. The Applicant shall pay this costs award at the rate of $200.00 per month, plus garnishment of federal and provincial refunds and credits payable to him from time to time. The first $4,250.00 shall be enforced by the Family Responsibility Office at this rate. Once the sum of $4,250.00 has been enforced by the Family Responsibility Office, the Applicant shall pay the balance due by way of cheques made out to Debra Bertolo, Barrister and Solicitor, in trust for the Respondent and to be delivered to the office of Ms. Bertolo on a monthly basis.

3. Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

4. This Order bears post-judgment interest at the rate of 3% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

5. A Support Deduction Order shall issue. The Applicant shall complete a Support Deduction Information Form and submit it to the Family Responsibility Office within 7 business days of receiving these Reasons for Judgment.

6. The Applicant shall inform the Respondent and the Family Responsibility Office of any changes in his address and employment within 7 days of any changes, and shall provide the Family Responsibility Office with any information which it requires for support enforcement purposes.

The Honourable Madam Justice Deborah L. Chappel

Released: August 7, 2018

COURT FILE NO.: F 1761/13

DATE: 2018/08/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Devon Royce Thompson

Applicant

– and –

Kathleen Ann Drummond

Respondent

REASONS FOR JUDGMENT

Chappel J.

Released: August 7, 2018