Court File and Parties

COURT FILE NO.: 18-219 DATE: 20181024

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

IAN HOWES NATHALIE TROTTIER, Counsel for the Applicant

- and -

JUDY HOWES A. LAWRENCE FILION, Counsel for the Respondent

HEARD: In chambers

COSTS DECISION

[1] These are my reasons on costs following a motion and cross motion, which the court bifurcated, on the issues of access to the child: Cayleb Lindsay Howes, born July 21, 2011 (“access motion”), and disclosure of CAS records pertaining to Josephine Foley, the Father’s partner (“disclosure motion”). Pursuant to the Respondent’s submissions, I shall also address whether or not the Applicant may rely upon a without prejudice correspondence in support of his request for costs.

BACKGROUND

[2] The motion was scheduled to be heard August 2, 2018. Ms. Howes sought an order that Ms. Josephine Foley disclose the name of any Children’s Aid Society with which she has had involvement, and provide consent to disclose to the Respondent all records in the Society’s possession relating to Ms. Foley. After hearing submissions and reviewing the evidence, the court was persuaded that information from the Children’s Aid Society (“CAS”) was required to address all issues, in particular, what was in the child’s best interest. Ms. Foley’s consent was dispensed with as, despite being personally served, (albeit short-served), she failed to attend court or respond to the motion. The court directed the Father to communicate with CAS to obtain letter from them outlining what, if any, concerns they had with him or his partner being in a caregiving role to the child: Cayleb. The court however was not inclined to order full disclosure of CAS records. The access issue was adjourned to August 13, 2018.

[3] At the access motion, the Mother sought an order that the child reside with her for two of the four days per shift cycle when she was working, and the Father would have access to the child five hours each day. Access between the Father and child would be permitted outside of the Mother’s residence so long as he did not take the child to his own residence, and so long as Ms. Foley was not present.

[4] The Father sought an order for shared custody (shared time) of the child, pursuant to the Mother’s work schedule, on a nine day rotation. For the first 9 day rotation, the Father would have the child during the first four days, and the Mother would have the child during the last five days of that rotation. For the second nine day rotation, the Father would have the child during the first five days, and the Mother would have the child during the last four days the rotation, or alternatively, four of the five days she was off from work.

[5] At the access motion, the court found that the status quo prior to separation was very nearly shared parenting of the child. Following separation, the Father’s parenting time was substantially decreased. The court found that the Mother attempted to unilaterally change the status quo following separation with regard to the Father’s access time. The court considered the child’s routines in both homes, both parties’ work hours, the potential risk of harm to Caleb, Caleb’s health issues, any risk of harm to him, the correspondence from the Children’s Aid Society, and a myriad of other factors. Ultimately, based on the status quo, and in the child’s best interest, the court ordered, on an interim basis, shared parenting time, based on a nine day rotation, with the child in the Father’s care from the evening prior to the Mother’s dayshift commencing, for two days, and on the “turnaround day”, being the day that when the Mother commences her night shift, the child would be with his Mother from 8:00 a.m. to 2:00 p.m. The child would then return to his Father’s home at 2:00 p.m., until 1:00 p.m. on the day after the Mother’s last night shift. During the five days when the Mother is not working, Caleb is with his Father for one evening, from after school until 7:00 p.m.

[6] Following that motion, both parties were invited to resolve the issue of costs, failing which, they were to provide written submissions.

[7] The Father is seeking full indemnity costs of $4,729.05. He relies on a written offer to settle which was not accepted by the Mother, Rule 24 of the Family Law Rules and as the successful party, he is entitled to his costs. His position is that the parties were unable to resolve the access issue at the urgent case conference held on July 16, 2018. Further, on August 2, 2018, when the motion was bifurcated, he opposed any adjournment. Though he was unable to consent to disclosure on behalf of Ms. Foley, he acknowledged the importance of the court in having the information. He argues that no costs should be awarded against him for the adjournment, or results, of the August 2, 2018 motion given that he had not been made aware that Ms. Foley had been served with the notice of motion, and he could not consent on behalf of a third party. He indicates the Respondent Mother was only partially successful in her request, as she sought full disclosure of Ms. Foley’s records. The results of the access motion heard on August 13, 2018 was an Order regarding shared parenting time, on a nine day rotation, pursuant to the status quo established prior to separation. On June 29, 2018, his counsel sent correspondence, marked without prejudice, offering to settle on the basis that he would have the child four consecutive dates, including overnights, out of a nine day rotation to coincide with the Mother’s work schedule. The offer was neither accepted nor withdrawn.

[8] The Respondent Mother indicates pursuant to Rule 24 (6) of the Family Law Rules, success was divided. While it is acknowledged that the Father was successful in obtaining the order for shared custody which he requested, the Mother was successful in her motion for the CAS records. Based on this divided success, the costs from the August 2, 2018 court date should be awarded to the Mother, carving out the costs claimed by the Father for that date in his submissions. It is argued that the Father’s offer to settle does not comply with Rule 18 FLR and was a without prejudice correspondence from the Father’s counsel to the Mother’s counsel. It is acknowledged that Rule 18(16) may apply as the court may exercise discretion over costs taking this into account, but counsel for the Applicant did not make submissions in this regard. Furthermore, the correspondence was without prejudice, is privileged, and it is not admissible for any reason, including determination of costs. It is argued that the privilege belongs to both parties, and cannot be unilaterally waived by either one. Alternatively, if the correspondence is admissible, it does not support a claim for costs, as the Mother could only properly consider the offer upon receipt of the CAS letter, dated August 9, 2018. The Mother argues that it was not reasonable for the access motion to be set without having Ms. Foley’s CAS disclosure. Further, the Mother’s letter of the July 23, 2018, regarding CAS disclosure was an offer to settle, and based on this, she was successful at the disclosure motion. The offer was as good as, or better, than the order made on August 2, 2018. She is thus entitled to full recovery of her costs. Total claimed for fees, H.S.T., and disbursements are $1,673.76, plus $1,500.00 for costs. Finally, if Ms. Foley did not disclose to Mr. Howes that she had been served with the notice of motion, this has no bearing on disposition of costs.

[9] The Mother advances that pursuant to Rule 24(4) FLR, the Father behaved unreasonably during the case. The Father failed to make reference to Ms. Foley’s CAS involvement in his 35.1 affidavit sworn June 26, 2018. He did so knowing there was active CAS involvement at the time, and he had a role in protection arrangements made by the CAS in relation to Ms. Foley’s daughter. The disclosure was only made after questioned by the Respondent, which resulted in the court endorsement requiring an updated 35.1 affidavit. Further, Ms. Foley did not file an affidavit to address the allegations of her drug use, alcohol consumption, or ownership of violent dogs, which necessitated the Mother pursuing her disclosure claims. The concerns were only mollified upon receipt of the CAS letter. Additionally, the Father did not comply with Rule 14(20) FLR with regard to the restrictions on evidence as he filed numerous affidavits following the service of his notice of motion. This incurred additional costs to the Mother, and delayed her meeting with counsel to prepare responding documentation. Furthermore, the second affidavit, dated July 27, 2018, and the updated 35.1 affidavit did not allow for sufficient time to permit the Mother to respond. Finally, the Father attempted to file a fourth affidavit before the access motion, without the Mother’s consent. Despite this, the Mother graciously permitted the filing of same to accommodate the access motion proceeding. Ultimately, given the Father’s failure to comply with the Family Law Rules, and failing to be prepared for the conference, his unreasonable behaviour should lead to him being deprived of one half of any costs to which he would otherwise be entitled. Any costs payable to the Father should be based on partial indemnity.

ISSUE 1: WITHOUT PREJUDICE CORRESPONDENCE

[10] In support of the his costs argument, the Applicant wishes to rely upon correspondence dated June 29, 2018, sent to Respondent’s counsel, marked without prejudice, which contains an offer to settle. The correspondence predates the bringing of the Applicant’s motion, service of his motion materials and the updated 35.1 affidavit.

[11] The Respondent’s position is that the correspondence is marked without prejudice, and therefore cannot be considered by the court as both parties have not waived the privilege attached to it. Further, even if admissible, the Respondent was unable to consider the offer given the lack of disclosure by the Applicant regarding the Children’s Aid Society. The CAS report was received on or about August 9, 2018.

[12] The Respondent relies on The Law of Evidence (5th edition) Sopinka, Lederman & Bryant, at page 1107 ss. 14.378 regarding costs, which states: [a]lthough an earlier Ontario case held that a letter written “without prejudice” could be admitted on the question of costs (see Boyd v. Simpson, (1879), 26 Gr. 278 (U.C. Ch.)), the prevailing view in Canada appears to be that it cannot: I. Waxman & Sons Ltd. V. Texaco Canada Ltd., 1968 ONSC 178, [1968] 1 O.R. 642, [1968] O.J. No. 1068 (Ont. H.C.J.) aff’d 1968 ONCA 327, [1968] 2 O.R. 452, [1968] O.J No. 1174 (Ont. C.A.); Walker v. Wilsher (1889), 23 Q.B.D. 335 (C.A.); Stotesbury v. Turner, [1943] K.B. 370 (K.B.); Cominco Ltd. v. Westinghouse Canada Ltd. (1981), 1981 BCSC 698, 33 B.C.L.R. 202, [1981] B.C.J. No. 1711 (B.C.S.C.). However, in England, settlement offers now appear to be admissible for the purpose of costs: Cutts v. Head, [1984] 1 Ch. 290 (C.A.); Computer Machinery Co. v. Drescher, [1983] 1 W.L.R. 1379 (C.A.).

[13] In I. Waxman, supra, the court reviews a number of cases which revolve principally around admissibility of without prejudice documents with respect to third parties or at trial. Subject to some exceptions, the court found that, generally speaking, without prejudice correspondence between parties to an action or dispute, in a bona fide effort to reach settlement between them, is privileged, and not admissible into evidence. This rule is founded on public policy. Only two paragraphs of the 15 page I. Waxman decision reference the issue of costs. In those paragraphs, citing Walker v. Wilsher, 1889, 23 Q.B.D. 335, Fraser J. states “[i]t is a considered judgment of the Court of Appeal in which the only real issue was whether “without prejudice” correspondence could be looked at on a question of costs. All three Judges were of the opinion that they could not.”

[14] The test for settlement negotiation privilege to be recognized is: (a) there must be a litigious dispute in existence or contemplated; (b) the communication must be made with the express or implied intention that it would not be disclosed to the court in the event the negotiations failed; and (c) the purpose of the communication must be to attempt to effect a settlement. (see IPEX Inc. V. AT Plastics Inc., 2011 ONSC 4734 at para. 32)

[15] I find that the correspondence in question meets the requisite preconditions for settlement negotiation privilege to be recognized.

[16] Justice Abella explained in Sable Offshore Energy Inc. v. Ameron International Corp. 2013 SCC 37, [2013] 2 S.C.R. 623, settlement privilege promotes settlements. As the weight of the jurisprudence confirms, it is a class privilege. (also see McWilliams’ Canadian Criminal Evidence, 2018 13:50:10)

[17] The Law of Evidence, supra, also sets out the following at ss. 14.364, 14.366, and 14.367: 14.364 The privilege belongs to both parties to the settlement overture and it cannot be unilaterally waived by either one. (see Leonardis v. Leonardis (2003), 2003 ABQB 577, 50 Alta. L.R. (4th) 56, [2003] A.J. No. 848, at para. 5 (Alta. Q.B.)) 14.366 Statutes may also abrogate the privilege. (see Re. Erinco Homes Ltd. (1977), 3 C.P.C. 227 [1977] O.J. No. 1415 (Ont. Master)) 14.367 The exceptions to the rule of privilege find their rational in the fact that the exclusionary role was meant to conceal an offer of settlement only if an attempt was made to establish it as evidence of liability or a weak cause of action, not when it is used for other purposes. Where documents referable to the settlement negotiation or the settlement document itself have relevance apart from establishing one’s liability and apart from showing the weakness of one party’s claim in respect of those matters, they are subject to production. (see Sabre Inc. v. International Air Transport Assn., [2009] O.J. No. 903, at paras. 20-23 (Ont. S.C.J.); Seanco Investments Inc. v. Betovan Construction Ltd., [2006] O.J. No. 274, at paras. 44-47 (Ont. S.C.J.); Mueller Canada Inc. v. State Contractors Inc., 1989 ONSC 4117, [1989] O.J. No. 2059, at paras. 13-16 (Ont. H.C.J.))

[18] The case law establishes that no privilege is absolute, and there are exceptions to be considered.

[19] A disclosure applicant will have to demonstrate that there are compelling policy reasons to invoke an exception to the general rule: Heritage Duty Free Shop Inc. v. Canada (Attorney General), 2005 BCCA 188 at para. 31. Exceptions are narrowly defined and seldom applied: Heritage Duty Free Shop Inc. v. Canada (Attorney General), supra, at para. 25.

[20] As stated in R. v. Pubani, (1994), 1994 ONCA 8723, 89 C.C.C. (3d) 437 at p.442 (para. 12), “The law has always encouraged discussion between parties to civil litigation that is directed to settling their differences. To foster the resolution of these disputes, the parties are encouraged to speak freely and without the concern that statements will be used against them in the event that a settlement is not arrived at.”

[21] The public policy purpose behind without prejudice communications is to promote settlement negotiations taking place without fear that what is discussed, negotiated, and/or settled will be disclosed at trial. The goal is to guard against such discussions, which may contain admissions of liability, being tendered as evidence at trial for the truth of their contents.

[22] As set out in McWilliams’, ultimately, the purpose of the privilege is to advance society’s interest in the settlement of legal disputes by protecting parties from the subsequent use of statements that they made during legal negotiations. On a principled basis, whenever this interest is either not engaged or overwhelmed by some other pressing public interest, the privilege should be set aside. (McWilliams’ Canadian Criminal Evidence, 2018 13:50:20)

[23] In Myers v. Dunphy, Wells C.J.N.L. set forth a principled basis for analysis of a claimed exception to settlement privilege:

1. Protection of admissions against interest, for the purpose of encouraging settlement discussions, is a compelling public policy basis for settlement privilege;
2. Express or implied agreement of the parties can also be a basis for the rule, and where the admissions fall within what can clearly be identified as a term of an express or implied agreement between the parties that factor is also to be considered;
3. Except where a special reason exists, or on the basis of express or implied agreement, protection should not be withheld from identifiable admissions while extending it to others expressed in the privileged communication;
4. Without prejudice communications are admissible to prove those communications have resulted in a compromise agreement; and
5. Where exclusion of the communication would facilitate an abuse of the privilege, or another compelling or overriding interest of justice requires it, without prejudice communications are admissible. (Myers v. Dunphy, 2007 NLCA 1, 2007 CarswellNfld 7, at para. 27)

[24] In Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., the court discussed exceptions to the settlement privilege, and stated that it is possible that the settlement posture of the parties can be relevant to costs. That is clearly the case with offers made under the Rules of the Court, but also with respect to informal offers: Mahe v. Boulianne, 2010 ABCA 74 (Alta. C.A.) at paras 8 - 10, (2010), 21 Alta. L.R. (5th) 277 (Alta. C.A.); Calderbank v. Calderbank, [1975] 3 All E.R. 333 (Eng. C.A.). (see Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10, 2013 CarswellAlta 76, at para. 29). In Tucker-Lester v. Lester, the court also noted that the issue of costs could be an exception to settlement privilege. (see Tucker-Lester v. Lester, 2012 SKQB 443, at para. 10)

[25] In Gatien v. Lalonde, Master Marie Fortier reviewed the premise from Sable Offshore Energy Inc. v. Ameron International Corp. regarding communications made the course of negotiations being inadmissible. (Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 SCC, at para. 2). In Gatien, the plaintiff argued that Sable Offshore was not decided in the context of a costs motion. In the matter before her, Master Fortier concluded that the liability in the action had been determined, and there were no live issues on the merits of the action but for costs following the motion. She then stated that motions for costs are governed by Rule 57.01(1) of the Rules of Civil Procedure, which expressly contemplate consideration of written offers to settle when exercising discretion under s. 131 of the Courts of Justice Act to award costs. (see Gatien v. Lalonde, 2017 ONSC 853, paras. 9 to 13)

[26] In the case at hand, the issues in question have been adjudicated.

[27] The Rules Committee, in crafting the Family Law Rules, decided that there was pressing public interest that offers to settle be used to determine costs. Rule 18(7) FLR states that an offer may not be accepted after the court begins to give a decision that disposes of a claim dealt with in the offer.

[28] At this juncture, the purpose behind disclosing the without prejudice communication is not to address liability or frailties in one’s case, but merely to establish that the communication/ offer was made. I find that this is an exception to the privilege, as it is relevant to the issue of costs. The public interest at this stage is resolution. It does not make sense that the offer, which can no longer be accepted as the issue has been adjudicated, cannot be disclosed to the court due to privilege. Further, it is in the interest of justice that there be consequences for failing to accept an offer to settle that is beaten at trial or motion.

[29] This is confirmed in my mind after reviewing Rule 18(8)(b) FLR, which addresses the confidentiality of the offer, and states that it shall not be mentioned to the judge until the claim has dealt with all the issues in dispute except costs; Rule 24(5) FLR, which mandates the court in determining reasonableness of a party to examine any offer the party withdrew or failed to accept; and Rule 24(12) FLR, which states that the court shall consider, inter alia, any written offers to settle, including offers that do not meet the requirements of Rule 18 FLR.

[30] Additionally, I have considered that Walker v. Wilsher, 1889, 23 Q.B.D. 335 predates the current Family Law Rules. These Rules oblige the court to consider costs and offers to settle. I have no evidence that, at the time Walker was decided, offers to settle formed a mandatory part of the court’s consideration when determining costs. Finally, the discussion of Walker by Fraser J. in I. Waxman was, at most, obiter.

[31] I find it is imperative to consider the context in I. Waxman and The Law of Evidence, and how it applies to the primary objective of the Family Law Rules, which is to deal with cases justly. I am unable to reconcile the primary objective with the arguments presented by the Respondent.

[32] Given the above, I find it is appropriate, in this case, to consider the without prejudice communication in determining the issue of costs.

ISSUE 2: COSTS

[33] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, which provides that subject to the provisions of an Act or rules of court, costs are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[34] Rule 24 of the Family Law Rules states that there is a presumption that a successful party is entitled to the costs of a motion.

[35] Rule 24(12) FLR outlines the factors to be considered in quantifying costs: (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.

[36] Modern costs rules are designed to foster 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: Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (Ont. C.A.), at para. 8; Sickinger v. Sickinger, 2017 ONSC 2612, at para. 11.

[37] Rule 2(2) FLR adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met - that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 FLR: Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.); Lawrence v. Lawrence, 2017 ONCJ 431, at para. 28.

[38] The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2: Lawrence v. Lawrence, supra, at para. 52.

[39] 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: Lawrence v. Lawrence, supra, at para. 54.

[40] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.), para. 25; Lawrence v. Lawrence, supra, at para. 31.

[41] In Boucher v. Public Accountants Council (Ontario) (2004), 2004 ONCA 14579, 71 O.R. (3d) 291 (Ont. C.A.), the Ontario Court of Appeal indicated that a costs award should be a "fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant". A "fair and reasonable amount" is that amount which 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, at para. 9.

[42] One measure of what is “fair and reasonable” to pay in costs may be arrived at by looking at what the unsuccessful party paid for their own legal fees. (see Goryn v. Neisner, 2015 CarswellOnt 8562, and Mohr v. Sweeney, 2016 ONSC 3238)

[43] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher v. Public Accountants Council (Ontario), supra; Lawrence v. Lawrence, supra, at para. 64.

[44] When awarded on a full recovery scale, costs can serve to express the court's disapproval of unreasonable conduct during the litigation: Prinzo v. Baycrest Centre for Geriatric Care, 2002 ONCA 45005, 2002 CarswellOnt 2263, 2002 C.L.L.C. 210-027, 17 C.C.E.L. (3d) 207, 161, O.A.C. 302, 60 O.R. (3d) 474, 215 D.L.R. (4th) 31 (Ont. C.A.), para 76; Lawrence v. Lawrence, supra, at para. 32.

[45] In determining costs, the court must also consider, pursuant to Rule 24(5) FLR, reasonableness of the parties. 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.

[46] Rule 18(4) FLR mandates that an offer to settle must be signed personally by the party making it and the party’s lawyer, if any. Any offer that does not comply with this provision may be invalid.

[47] Rule 18(14) FLR sets out the costs consequences of failure to accept an offer to settle: (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. O. Reg. 114/99, r. 18 (14).

[48] Rule 24(6) FLR 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. However, the determination of whether success was truly "divided" 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 that required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (Ont. S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (Ont. C.A.)): Lippert v. Rodney, Norton and Norton, 2017 ONSC 5406, at para. 14.

[49] Success is given presumptive pre-eminence in Rule 24. While Rule 24(12)(b) FLR [previously 24(11)(f)] does permit the consideration of ability to pay (under the umbrella of "any other relevant matter"), it is given significantly less prominence than the presumption that costs will follow success. (see Biant v. Sagoo, 2001 ONSC 28137, 2001 CarswellOnt 3315, [2001] O.T.C. 695, 20 R.F.L. (5th) 284 (Ont. S.C.J.): Lawrence v. Lawrence, supra, at para. 33)

[50] Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). (see Peers v. Poupore, 2008 ONCJ 615 (Ont. C.J.), para. 42; Lawrence v. Lawrence, supra, at para. 35)

[51] The (financial) means of the unsuccessful party may not be used to shield them from liability for costs, particularly when they has acted unreasonably: Gobin v. Gobin (2009), 2009 ONCJ 278, 71 R.F.L. (6th) 209 (Ont. C.J.), para. 24; Lawrence v. Lawrence, supra, at para. 36.

[52] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made: Lawson v. Lawson, 2008 ONSC 23496, 2008 CarswellOnt 2819, [2008] W.D.F.L. 3600, 167 A.C.W.S. (3d) 723, [2008] O.J. No. 1978 (Ont. S.C.J.). The position each party took in the case should also be examined: Lawrence v. Lawrence, supra, at para. 41.

[53] In determining the quantum of costs, I have taken into account the factors set out in Rule 24(12): (a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: The issues at trial were important to both parties, but not significantly complex. A great deal of time and effort was dedicated by both parties in addressing the issues in question. (i) each party’s behaviour: Both parties proffer correspondence demonstrating their attempts to resolve the issues. While the correspondence does not meet the threshold of offers to settle as per Rule 18(14), they are nonetheless attempts to resolve the issues, and establish both parties’ reasonableness. There is no evidence of them being withdrawn or accepted. I have taken into account the Father’s failure to comply with the Family Law Rules by submitting numerous affidavits contrary to Rule 14(20) FLR. Further, his additional affidavit materials were filed without permitting the Mother sufficient time to respond. The Mother meanwhile, despite the Father’s breach of the Rules, permitted the court to review the affidavit materials. I have considered that the Father did not make reference to Ms. Foley’s CAS involvement in his initial 35.1 affidavit. Upon further reflection of this issue, the form only requires disclosure if a child of this person has ever been in the care of a children’s aid society. This was not the case. Despite same, at the court’s request, the Father completed an updated 35.1 affidavit, setting out the relevant information. I therefore do not find the Father’s behavior in this regard to be unreasonable. I have also weighed the Respondent’s non-compliance with the Family Law Rules in short-serving Ms. Foley regarding the disclosure motion. The Rules clearly call for six days’ notice, yet Ms. Foley was served July 31, 2018 at 9:04 a.m. for a motion scheduled to proceed August 2, 2018. She was not a party to the proceedings. Though the court dispensed with her consent to obtain a letter from CAS, this was based on a determination of what is in the child’s best interest, which included the court needing to be aware of what, if any, risk there was to the child by being exposed to Ms. Foley. (ii) the time spent by each party: Both parties submitted bills of costs to support the time spent by each of them. These bills of costs reflect a reasonable amount of time spent by each counsel on the issues. I have no difficulty with either one of them. (iii) any written offers to settle, including offers that do not meet the requirements of Rule 18: I note that neither correspondence exchanged through counsel meet the requirements of Rule 18(4) FLR as neither are signed by the party’s, only by their counsel. I do not find them to be valid offers in the context of Rule 18(14) FLR. I have nonetheless considered the offers made in the context of Rule 18(16). (iv) any legal fees, including the number of lawyers and their rates: The Applicant’s bill of costs reflects the time incurred for the both motion dates and costs submissions. He seeks $4,729.05, or full indemnity. The Respondent’s bill of costs on the other hand only accounts for the first motion date (disclosure), and not the access motion. Ultimately, the Respondent seeks full recovery from the disclosure motion, $1,673.76, minus partial recovery to the Applicant for the access motion, plus costs of $1,500.00, with a net total owed to the Respondent of $2,060.15. (v) any expert witness fees, including the number of experts and their rates: In this case, this was not an applicable factor at the motion. (vi) any other expenses properly paid or payable: The disbursements claimed by the Respondent are reasonable. None are claimed by the Applicant. (b) any other relevant matter: I have addressed the question of the without prejudice communication above.

[54] I am mindful that the Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678, at para. 13.

[55] As stated by Justice D. Chappel in Thompson v. Drummond, when addressing divided success: 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 (Ont. 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 (Ont. S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (Ont. 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 (Gomze-Pound v. Pound, [2009] O.J. No. 4161 (Ont. C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (Ont. C.J.)). (see Thompson v. Drummond, 2018 ONSC 4762 at para. 12)

[56] Divided success does not necessarily mean “equal success”. Most family court cases involve multiple issues. Not all issues are equally important, equally time consuming or equally expensive to determine. (see Jackson v. Mayerle, supra at para. 66)

[57] The court may also in those circumstances award costs to the party who was more successful on an overall global basis. Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (Ont. C.J.). (Jackson v. Mayerle, supra, at para. 67)

[58] Based on the relief plead in his notice of motion, Applicant was successful in what I find was the primary issue: parenting time with the child. The Applicant’s offer was contained in a without prejudice correspondence, and though not in compliance with Rule 18(4) FLR, and therefore not valid pursuant to Rule 18(14) FLR, was nevertheless better than what was ordered at the motion.

[59] The Respondent was not successful based on her prayer for relief in her notice of motion. However, her offer to settle, also not in compliance with Rule 18(4) FLR, and therefore not a valid offer for consideration for full recovery of costs pursuant to Rule 18(14) FLR, was likewise as favourable as the order made by the court. This is tempered however with the reality that the Father was unable to consent to Ms. Foley’s records being disclosed. Conversely, with Ms. Foley’s consent, the Father disclosed Ms. Foley’s criminal record prior to the motion being heard. I have considered Noel v. Noel, 2015 ONSC 4561, where costs were awarded in favour of the Office of the Children’s Lawyer (“OCL”) and the Respondent following a motion for disclosure. In that case, the court had already made an order requesting the involvement of OCL. The OCL agreed to take on the file and conduct an investigation. The step-father refused to provide consent to disclose information. This is distinguishable from the case at hand, as the party seeking the information is not OCL, and is not appointed pursuant to a court order to conduct an investigation. Given that the Father was unable to consent to disclosure on behalf of Ms. Foley, and despite the order being as favourable as the offer made, I am not persuaded that the Father should bear the brunt of costs incurred with regard to the disclosure motion, nor am I persuaded that a non-party, who was short-served, should pay costs.

[60] Though the Respondent Mother presented concerns about Ms. Foley, this was in the context of the child being exposed to, or in the care of Ms. Foley.

[61] The Applicant failed to comply with Rule 14(20) FLR, and this was unreasonable behaviour. I have also considered the Mother’s non-compliance with the Rules, which I find was less egregious.

[62] After weighing all of the above, the divided success, I find it is appropriate to grant the Applicant costs in the amount of $1,250.00, inclusive of H.S.T., payable by the Respondent, forthwith.

[63] I thank both counsel for their excellent submissions.

DISPOSITION

[64] Based on all of the above: i. The Respondent shall pay to the Applicant, costs in the amount of $1,250.00, payable forthwith. ii. The Applicant’s costs submissions located at Volume 2, Tab 23 shall be removed from the continuing record.

The Honourable Justice Hélène C. Desormeau Date: October 24, 2018 Howes v. Howes, 2018 ONSC 6297

COURT FILE NO.: 18-219 DATE: 20181024 ONTARIO SUPERIOR COURT OF JUSTICE IAN HOWES – and – JUDY HOWES COSTS ORDER The Honourable Justice Hélène C. Desormeau Released: October 24, 2018