Court File and Parties
COURT FILE NO.: FS 12-341 DATE: 2018 October 18 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Brendon Eugene Hiscock, Applicant AND: Jennifer Lynne Skitch, Respondent
BEFORE: The Honourable R. J. Harper
COUNSEL: Monica Scholz, Counsel, for the Applicant Andrew Nicholls, Counsel, for the Respondent
HEARD: October 12, 2018
COSTS ENDORSEMENT
Background
[1] This matter originally came before me on September 21, 2018 as an urgent motion brought by Brendon Eugene Hiscock. In that motion, he sought the return of his child Ethan James Skitch, born September 5, 2013 to his care. He also sought an order to allow the child to return to his former school, Russell Reid Public school in Brantford, Ontario.
[2] The mother of the child, Jennifer Lynne Skitch, moved the child from Brantford to Cambridge, Ontario without informing or making any effort to consult with the father. This is in spite of the fact that the parties had entered into minutes of settlement on October 1, 2012 that was made into the court order of Justice Taylor providing for joint custody and a residence scheme for the child that provided for equal time with each parent. She took it upon herself to make this significant change in the child’s life without seeking a court order.
[3] In my endorsement of September 21, 2018 I stated at para 15:
[15] It is my strongly held view that courts should not condone parents’ taking the law into their own hands in order to effect a strategic advantage. If there are concerns with respect to parenting of the other parent unless it is a safety issue, the parent must come to court in order that the court can properly assess what is in the best interest of the children. By taking the law into their own hands the parent deprives the court of that analysis that is required by statute. Even if there is a safety issue, the parent can take steps to protect the children and still come to court at the earliest opportunity on an urgent basis.
[4] I also found that there was nothing in the evidence that justified the mother taking the child out of their school and their community. I ordered the child to be returned to his former school and to reside with the father during the week and with the mother on weekends pending return of the matter.
[5] Upon the return of the motion, the parties entered into a final agreement. The mother accepted the offer to settle of the father dated October 9, 2018. This offer provided for joint custody of the child and a residency schedule that calls for a week about with each parent. It was agreed that the child should attend his former school in Brantford.
[6] I reserved judgment on the issue of costs.
[7] On September 28, 2018, counsel for the mother, Mr. Nicholls, had a telephone discussion with counsel for the father, Ms. Scholz. He represented, in his submissions with respect to costs, that he told Ms. Scholz that his client was willing to settle the custody by equally sharing time and joint custody. The mother never sent a formal offer to settle pursuant to the Family Law Rules nor any written confirmation of her offer that was made orally in that telephone call between the lawyers.
[8] The father served his formal offer to settle on October 9, 2018. It was accepted the same day.
[9] In a letter from Mr. Nicholls to Ms. Scholz dated October 9, 2018, Mr. Nicholls stated that his client had instructed him to accept the mother’s offer to settle with some minor changes. He also stated: “Please note that my client is agreeable to paying a substantial portion of Mr. Hiscock’s initial costs.” However, Mr. Nicholls submitted that since he informed Ms. Scholz in their telephone conversation of September 28, 2018 that his client was willing to settle on a week about schedule, the costs incurred after that telephone call should not have been incurred by either party.
The Law and Analysis
[10] The Family Law Rules provide the following:
RULE 24: COSTS
SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY
(2) The presumption does not apply in a child protection case or to a party that is a government agency. O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).
COURT’S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY
(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).
SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (4).
DECISION ON REASONABLENESS
(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. O. Reg. 114/99, r. 24 (5).
DIVIDED SUCCESS
(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
ABSENT OR UNPREPARED PARTY
(7) 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. O. Reg. 114/99, r. 24 (7); O. Reg. 235/16, s. 4 (1).
BAD FAITH
(8) 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. O. Reg. 114/99, r. 24 (8).
COSTS CAUSED BY FAULT OF LAWYER OR AGENT
(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,
(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;
(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;
(c) order the lawyer or agent personally to pay the costs of any party; and
(d) order that a copy of an order under this subrule be given to the client. O. Reg. 114/99, r. 24 (9).
DECIDING COSTS
(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.
(10.1) Revoked: O. Reg. 298/18, s. 14.
SAME
(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.
SETTING COSTS AMOUNTS
(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.
[11] Rule 18 reads:
- (1) In this rule,
“offer” means an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer. O. Reg. 114/99, r. 18 (1).
APPLICATION
(2) This rule applies to an offer made at any time, even before the case is started. O. Reg. 114/99, r. 18 (2).
MAKING AN OFFER
(3) A party may serve an offer on any other party. O. Reg. 114/99, r. 18 (3).
OFFER TO BE SIGNED BY PARTY AND LAWYER
(4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. O. Reg. 114/99, r. 18 (4).
WITHDRAWING AN OFFER
(5) A party who made an offer may withdraw it by serving a notice of withdrawal, at any time before the offer is accepted. O. Reg. 114/99, r. 18 (5).
TIME-LIMITED OFFER
(6) An offer that is not accepted within the time set out in the offer is considered to have been withdrawn. O. Reg. 114/99, r. 18 (6).
OFFER EXPIRES WHEN COURT BEGINS TO GIVE DECISION
(7) An offer may not be accepted after the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (7).
CONFIDENTIALITY OF OFFER
(8) The terms of an offer,
(a) shall not be mentioned in any document filed in the continuing record; and
(b) shall not be mentioned to the judge hearing the claim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs. O. Reg. 114/99, r. 18 (8).
ACCEPTING AN OFFER
(9) The only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before,
(a) the offer is withdrawn; or
(b) the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (9).
OFFER REMAINS OPEN DESPITE REJECTION OR COUNTER-OFFER
(10) A party may accept an offer in accordance with subrule (9) even if the party has previously rejected the offer or made a counter-offer. O. Reg. 114/99, r. 18 (10).
COSTS NOT DEALT WITH IN OFFER
(11) If an accepted offer does not deal with costs, either party is entitled to ask the court for costs. O. Reg. 114/99, r. 18 (11).
COURT APPROVAL, OFFER INVOLVING SPECIAL PARTY
(12) A special party may make, withdraw and accept an offer, but another party’s acceptance of a special party’s offer and a special party’s acceptance of another party’s offer are not binding on the special party until the court approves. O. Reg. 114/99, r. 18 (12).
FAILURE TO CARRY OUT TERMS OF ACCEPTED OFFER
(13) If a party to an accepted offer does not carry out the terms of the offer, the other party may,
(a) make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or
(b) continue the case as if the offer had never been accepted. O. Reg. 114/99, r. 18 (13).
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
(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:
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. O. Reg. 114/99, r. 18 (14).
COSTS CONSEQUENCES — BURDEN OF PROOF
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).
COSTS — DISCRETION OF COURT
(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).
[12] The Ontario Court of Appeal reiterated the importance of costs awards as a tool for promoting efficient, fair and meaningful access to justice in Fong v. Chan, 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.) and Serra v. Serra, 2009 ONCA 395, 2009 ONCA 395 (C.A.). In those cases, the court summarized that modern rules respecting costs aim to foster the following three fundamental purposes:
To partially indemnify successful litigants for the cost of litigation;
To encourage settlement; and
To discourage and sanction inappropriate behaviour by litigants.
[13] I agree with the comments by Chappel J in Thompson v. Drummond, 2018 ONSC 4762:
[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, 2017 ONSC 6261 (S.C.J.); Lawrence v. Lawrence, 2017 ONCJ 431, 2017 ONCJ 431 (O.C.J.), at para 27; Kukyz v. Simeoni, 2017 ONSC 6732, 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] 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] O.J. No. 3707, 67 O.R. (3d) 181; 2003 CarswellOnt 3606 (C.A.); Fielding v. Fielding, 2015 ONCA 901, 2015 ONCA 901 (C.A.)).
Application of the law to this case
[14] I find the father was successful and he is presumed to be entitled to costs.
[15] I find that the mother acted in bad faith when she removed the child from his home and school without the knowledge of or consultation with the father. This was especially egregious given that the parties had joint custody and equal time sharing.
[16] One of the terms of my order provided that the motion was adjourned to October 12, 2018. The father was to serve and file an application to include his claim for custody no later than October 1, 2018. He was also required to file up to date affidavits that address the best interest of the child issues by October 1, 2018 and the mother’s response was due on October 5, 2018.
[17] The significance of the requirement to file up to date affidavit evidence was that the court did not have sufficient evidence to address all of the factors relating to the best interest of the child. The urgent motion that resulted in my order of September 21, 2018, only dealt with preserving what was the status quo prior to the mother’s self-help initiative.
[18] The telephone call between Mr. Nicholls and Ms. Scholz of September 28, 2018, included an outline of what the mother would be prepared to do to settle the case. It was not followed up with anything in writing let alone a formal offer pursuant to the rules.
[19] I do not agree with the submission of Mr. Nicholls that it was not necessary for either party to have to prepare the application and subsequent affidavits. Those documents were specifically ordered by me to provide the court with necessary evidence of the child’s best interest that would be required to either make a determination on the argued motion or to assess whether any agreement of the parties was in the child’s best interest.
[20] Under the circumstances I find that the father is entitled to a substantial portion of his costs to and including the argument relative to costs.
[21] The parties submitted their costs summaries.
[22] Ms. Scholz seeks an order in the amount of $10,000 inclusive of fees disbursements and HST.
[23] Mr. Nicholls submits the application and motion costs should be no more than $1500.00.
Ruling
[24] The father was not represented by counsel until shortly after my order of September 21, 2018. There was no evidence of any costs he had to incur in order to prepare his material and come to court for the urgent motion.
[25] The costs that he did have to incur consisted of his counsel being required to prepare and file an application and financial statement, motion material and her client’s expanded affidavit along with 3 supporting affidavits.
[26] The father’s counsel was also required to review the responding affidavits of the mother and prepare and serve an offer to settle that was accepted the same day.
[27] I must also consider the impact of any order for costs on the custody order that I have made pursuant to the accepted order. Having said that, I balance this consideration with the bad faith I found on the part of the mother that was the catalyst to the legal costs that were incurred.
[28] Having regard to all of the above considerations the mother respondent shall pay to the father applicant the total sum of $5,000.00 in costs inclusive of fees, disbursements and HST. The costs shall be paid within 30 days.
The Honourable R. J. Harper
Date: October 18, 2018