Court File and Parties
COURT FILE NO.: FC-16-2045 DATE: 2018/08/10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Daniel Moncur, Applicant -and- Stephanie Ginette Plante, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: M. Marello, for the Applicant S. Fried, for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
Overview
[1] After the hearing of the motions in this matter, the Court granted orders dealing with the interim parenting schedule, disclosure and whether the Applicant was required to attend at an alcohol assessment. The parties were invited to provide written submissions on costs.
[2] Having considered the parties’ submissions, the Applicant’s bill of costs and the Family Law Rules[^1], the Court awards the Applicant costs in the amount of $7,138.34 (including HST and disbursements), payable within 30 days.
Positions of the Parties
[3] The Applicant seeks his costs on a full recovery basis given he was the successful party on the motion and, prior to preparing his motion, he served an offer which satisfies the requirements of Rule 18(14) of the Family Law Rules. The Applicant submits that he is presumptively entitled to his costs on a full recovery basis. The Applicant seeks costs in the amount of at least $7,138.34 (inclusive of disbursements and HST), being his costs for the motion, and also asks the Court to award an additional amount for costs incurred prior to the motion preparation, for the period from March 14, 2018 to June 6, 2018, during which time his fees, plus HST, totalled $4,939.23. He states that these earlier fees related to the subject matter of the motion, being summer access, on which he was ultimately successful.
[4] The Respondent submits that no costs should be awarded on the motion or, in the alternative, costs to the Applicant should be fixed at $2,500. Aside from reiterating points made on the substantive motion, the Respondent states that the Applicant’s motion was unnecessary, that the Applicant acted unreasonably in delaying responding to emails or providing information about his requested summer holiday, and that the Applicant’s costs are excessive. The Respondent did not provide her own bill of costs to assess the reasonableness of the Applicant’s costs.
Legal Principles
[5] The Ontario Court of Appeal in Serra v. Serra[^2] confirmed that the modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the award should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.
[6] Rule 18(14) of the Family Law Rules provides:
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:
- If the offer relates to a motion, it is made at least one day before the motion date.
- 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.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[7] Even when one party is presumptively entitled to costs under Rule 18(14), the Court retains the ultimate discretion in awarding costs. This discretion must be informed by the overall conduct of the parties and all of the circumstances and dynamics of the case, including the unsuccessful party’s financial means, the reasonableness of the successful party’s bill of costs and the parties’ behavior[^3].
[8] With respect to the meaning of “full recovery", I agree with Justice Chappell’s view in Beaver v. Hill[^4], that:
“the term "full recovery" refers 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 Corp. No. 1633 v. Baghai Development Ltd., [2012] O.J. No. 2746 (Ont. C.A.)).
Analysis
Success of the Parties
[9] The Applicant was the successful party on the motion and is presumptively entitled to his costs of the motion.
Offers to Settle
[10] The Applicant also served an offer before preparing his motion. His offer to settle is dated May 31, 2018. His Notice of Motion is dated June 14, 2018. The Respondent’s Cross-Motion is dated June 27, 2018. Both motions were argued on July 5, 2018.
[11] Although there are some small differences between the terms of the Applicant’s offer and the Order that was granted, these differences are minor and were not opposed by the Applicant or were made on consent. The Order granted is, in a general overall comparison, as or more favourable on all issues than the Applicant’s May 31, 2018 offer. The Applicant’s offer satisfies the requirements of Rule 18(14) of the Family Law Rules.
[12] The Applicant is therefore presumptively entitled to his costs on a full recovery basis from the date the offer was served. I accept the Applicant’s submissions that these costs totalled $7,138.34 (including HST and disbursements).
[13] The Respondent did not make an offer to settle. A party’s failure to serve an offer may be viewed as an adverse factor in determining quantum of costs[^5]. The Respondent’s failure to serve an offer undermines her position that the Applicant’s conduct was unreasonable because of her view that the motion was not necessary and that the Applicant could have, but did not, propose a summer holiday for a different week during the summer that presumably would have been acceptable to her.
Other Factors
[14] The Court must also consider the reasonableness and proportionality of the costs claimed. In doing so, the Court has considered all of the circumstances of this case, including the following factors:
The conduct of the parties
[15] Six affidavits were filed on this motion, along with the Applicant’s factum. Although the legal issues were not complex, there was significant factual material which needed to be presented. This included the Respondent’s Cross-Motion dated June 27, 2018, which resulted in a responding affidavit by the Applicant, plus three other affidavits from his family and friends. Given the nature of the allegations made by the Respondent, along with the type of evidence that she considered material in her own affidavit, this Court does not find that the Respondent’s material was excessive given the issues.
[16] Although the Respondent takes issue with the timing of various communications with the Applicant, these complaints relate to periods of time prior to the preparation of the Applicant’s motion. This Court does not find that the Applicant’s behavior warrants a reduction in the award of costs.
Legal fees
[17] The Applicant’s lawyer’s rate, in 2018, is $310 per hour. Her year of call is 2001. These rates are reasonable.
[18] Although the Respondent objects that the Applicant’s bill of costs is excessive, she has not provided her own bill of costs. Failure of an unsuccessful party to provide details regarding their own costs is a factor that the Court may take into account in considering the reasonableness of the fees, and the reasonable expectations of the losing party, and may entitle the court to draw an adverse inference.[^6]
[19] The Court has reviewed the Applicant’s bill of costs and finds that the time spent by the Applicant’s counsel is not excessive nor beyond the Respondent’s reasonable expectations of what costs would be incurred, and is a fair, reasonable and proportional amount for the Respondent to pay.
[20] The Applicant’s disbursements, which totalled $122.17, are reasonable.
Respondent’s Ability to Pay
[21] The Respondent did not submit that her ability to pay was a factor that should reduce the amount of costs. The only financial statements of the parties that are filed in the Continuing Record (the Applicant’s financial statement sworn September 21, 2016, and the Respondent’s financial statement sworn December 2, 2016) indicate that there is not a great difference between the parties’ respective financial situations, but that the Respondent’s income and financial situation is somewhat better than the Applicant’s. I do not find that the Respondent’s ability to pay a cost award, for reasonable legal fees incurred by the Applicant with respect to this motion, warrants a reduction in the amount of costs.
Applicant’s Earlier Legal Fees
[22] I decline to include an additional amount for costs incurred prior to the preparation of the motion. Those costs, while they may, or may not, relate to the issues determined on the motion, should be addressed at trial.
[23] Given the Applicant’s success on the motion, and the timing of his offer to settle, he is presumptively entitled to his costs of the motion on a full recovery basis. Taking the above factors into consideration, the Court orders the Respondent to pay costs to the Applicant fixed at $7,138.34 (inclusive of disbursements and HST), payable within 30 days.
Justice P. MacEachern
Date: August 10, 2018
COURT FILE NO.: FC-16-2045 DATE: 2018/08/10
ONTARIO SUPERIOR COURT OF JUSTICE
RE: David Daniel Moncur, Applicant -and- Stephanie Ginette Plante, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: M. Marello, for the Applicant S. Fried, for the Respondent
COSTS ENDORSEMENT
Justice P. MacEachern
Released: August 10, 2018
[^1]: Family Law Rules, O. Reg. 114/99, as am. [^2]: Serra v Serra, (2009), 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 CarswellOnt 2475 (Ont. C.A.) [^3]: Family Law Rules, Rule 18(14), Rule 18(16); M. (C.A.) v. M. (D.) 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 (Ont.C.A) [^4]: Beaver v. Hill, 2018 ONSC 3352 at para 53 [^5]: M. (J.V.) v. P. (F.D.), 2011 ONCJ 616 [^6]: Smith Estate v. Rotstein, 2011 ONCA 491 at para. 50; Scipione v. Del Sordo, 2015 ONSC 5982 at para. 126; 2016637 Ontario Inc. v. Catan Canada Inc., 2013 ONSC 5448 at para. 7; Risorto v. State Farm Mutual Automobile Insurance Co., 2003 ONSC 43566 at para 10