OTTAWA COURT FILE NO.: FC-16-1061
DATE: 2018/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ricardo De Riso
Applicant
– and –
Nunziatina Daniela Randazzo
Respondent
Lorna Baldwin, for the Applicant
Stephen Fried, for the Respondent
HEARD: In Writing
DeCISION ON Costs
Justice Engelking
Introduction
[1] A trial was held in this matter on November 27, 28 and 29, 2017. Reasons for Judgment were released on March 15, 2018. Written submissions on the issue of costs were invited and received from both parties, along with copies of their bill of costs and offers to settle. This is the decision on costs.
[2] At the commencement of trial, Ms. Randazzo brought a Summary Judgment Motion seeking an order for enforcement of what she submitted was a final agreement between the parties. Mr. De Riso opposed her motion. He was successful in that the court found that there was no final agreement on the issue of his parenting time with the children. Costs of the motion were reserved to the completion of trial. The trial then proceeded on that matter. The parties resolved all other issues prior to the commencement of trial, including joint custody of the children. The only other outstanding issues, which were essentially resolved over the course of the trial, were Mr. De Riso’s income for the purposes of child support and Ms. Randazzo’s income for the purposes of section 7 or extraordinary expenses.
[3] Ms. Randazzo’s position at trial was that Mr. De Riso would have the children as per the schedule which she put in place in September of 2014, which was Wednesday from 5:30 to 8:30 p.m. and Friday from 5:30 p.m. to Sunday at 5:30 p.m. on one week and Tuesday and Thursday from 5:30 to 8:30 on the other week. She was of the view that mid-week overnight access was not in the best interests of the children. Her alternative position, in the event that the court was inclined to order mid-week overnight access, was that it be every week from Wednesday to Thursday morning, as opposed to on Tuesdays and Thursdays of the alternating weeks. Mr. De Riso’s position was that the parties should have shared parenting, by whatever schedule worked best for the parties and the children (50/50, 3/4/4/3, 2/2/3).
[4] The outcome of the trial was that Mr. De Riso would have regular care of the children from the end of the school day on Wednesday to the beginning of the school day on Thursday one week, and from the end of the school day on Wednesday to the beginning of the school day on Monday, to be extended to Tuesday if Monday is a statutory holiday or PD day, on the alternating week. The parties were to also equally share all of the children’s holidays from school.
[5] Mr. De Riso is seeking $15,000 from Ms. Randazzo as a partial contribution to his costs; his counsel submits that she spent 52.7 hours on the custody and access issues since March 29, 2017 at her hourly rate of $400, which amounts to $21,080 in her time alone.
[6] Ms. Randazzo seeks an order of $20,000 in costs to her plus applicable HST. Her counsel submits that the actual costs to Ms. Randazzo from September 1, 2017 to the end of trial, inclusive of disbursements and HST, was $39,494.07.
Applicable Law on Costs
[7] Rule 24(1) of the Family Law Rules (as they were at the time of trial and decision) provides that there is a presumption that a successful party is entitled to the costs of the case.
[8] Rule 24(11) outlines that the Court shall take into consideration the following factors in setting an amount for costs: the importance, complexity or difficulty of the issues; the reasonableness or not of each party’s behaviour; the lawyer’s rates; the time properly spent on the case; and, any other relevant matter.
[9] In determining the reasonableness or unreasonableness of a party, pursuant to Rule 24(5) the Court is to examine the party’s behaviour in relation to the issues from the time thy arose; the reasonableness of any offer to settle; and, any offer the party withdrew or failed to accept.
[10] Rule 18(14) dictates that a party is entitled to cost from the date of an offer on a full recovery basis if the criteria contained therein are met.
[11] Rule 18(16) provides that the court may take into consideration any written offer to settle, the date at which it was made and its terms even if it does not meet the criteria of subrule 18(14).
[12] The Court still has discretion to ensure that costs are fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of any case as per Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA) at para 26.
Analysis
[13] The first issue, in order for the presumption in Rule 24(1) to apply, is to determine who was the successful party, and even if successful, whether he or she behaved unreasonably such that he or she should be deprived of costs recovery pursuant to subrule 24(4). In this case, Mr. De Riso was the successful party on the Summary Judgment Motion in its entirety. However, that the court had to go through the exercise of determining that issue at the commencement of trial is in my view due to Mr. De Riso not being clear in his acceptance of the September 13, 2017 terms proposed by Ms. Randazzo that he was doing so on a temporary basis. As I found in the motion, it was ultimately logical that Mr. De Riso thought he was solving the motion that he had before the court, however his communication to Ms. Randazzo’s in this regard was, to put it mildly, rather lasse faire. This put Ms. Randazzo in the precarious position of believing, immediately before trial, that once the property and financial matters was settled, the entire matter was going to be resolved by Minutes of Settlement. Indeed, her counsel drafted and sent Minutes of Settlement to Mr. De Riso’s counsel and only learned then, on the Saturday before the commencement of the trial, that the parenting issues had not been agreed to on a final basis. Mr. De Riso’s actions in this regard were unreasonable, and resulted in unanticipated work and the incurring of additional costs, likely for both parties. Thus, although the successful party on the motion, I decline to order costs in favour of Mr. De Riso on the Summary Judgment Motion.
[14] With respect to the remaining issue for trial, Mr. De Riso’s parenting time with the children, I concur with counsel for Ms. Randazzo that the offers made by Mr. De Riso do not meet the strict requirements of Rule 18(14) such that they attract costs on a full indemnity basis post-offer. The first offer of November 11, 2017 was withdrawn prior to the commencement of trial; the second of November 22, 2017 was not delivered seven days in advance of trial; and the third by email on November 26, 2017 was not a formal offer. Nevertheless, pursuant to Rule 18(16) the court may take the offers of November 22, 2017 (which was not withdrawn prior to the commencement of trial) and of November 26, 2017 into consideration when making a determination regarding costs.
[15] Mr. De Riso did better at trial than what was contained in his offer to settle of November 22, 2017, in that his proposal was that one additional overnight would not commence until January of 2019, and another would not commence until April of 2019. However, his proposal also led ultimately to a week on/week off shared parenting regime, which he was not successful in achieving. In his offer of November 26, 2017, Mr. De Riso had backed away from the week on/week off regime and was proposing that he would have the children from Tuesday after school to Wednesday at school on week one, and from Tuesday after school to Thursday at school on the alternating week, as well as every other weekend from Friday to Monday and shared holidays, including PD days and week on/week off in the summer. Had this offer been accepted, Mr. De Riso would have ended up with three mid-week overnights – Tuesday on one week and Tuesday and Wednesday on the other. At the end of trial, Mr. De Riso ended up with three mid-week overnights – Wednesday on one week, and Wednesday and Thursday on the other. Thus, the outcome of trial was as favourable to Mr. De Riso as was his informal offer.
[16] Ms. Randazzo included four formal offers to settle in her costs submissions, three of which meet the criteria of Rule 18(14), specifically those of June 9, 2015, December 20, 2016 and August 10, 2017. Her Offer to Settle dated November 22, 2017 suffers the same fate as that of Mr. De Riso of the same date; it was not delivered seven days in advance of the trial. With respect to Mr. De Riso’s parenting time, the three first offers all limited mid-week access to Wednesday from 5:00 to 8:00 pm and alternating Tuesdays and Thursdays from 5:00 to 8;30 pm. Ms. Randazzo’s offer of November 22, 2017, proposed to settle the issue of Mr. De Riso’s parenting time as per her counsel’s September 13, 2017 letter, which provided for Wednesday after school to Thursday morning on one week, and Tuesday and Thursday from 3:00 to 8:30 pm on the alternating week, along with every second weekend from Friday to Monday. At trial, Mr. De Riso fared better than in all of Ms. Randazzo’s offers.
[17] Ms. Randazzo submits that she was the more successful party by the status quo essentially being maintained (but for the added Thursday night every second week), however, my review of the offers and the outcome of the trial, leads me to conclude that Mr. De Riso is entitled to some costs.
[18] The matter, while not particularly complex, was important to both of the parties. I do not find either’s position to be unreasonable (but for my findings on the Summary Judgment Motion). Ms. Randazzo had a firmly held belief that mid-week overnight access to the children was not in their best interests. Mr. De Riso had a firmly held belief that the principle of maximum contact was paramount. Given the years to the bar and level of experience of both counsel, I find their rates to be reasonable.
[19] I have reviewed Ms. Baldwin’s bill of costs commencing from March 29, 2017, and reduced her 52.7 to 33 by removing entries dealing exclusively with financial issues and reducing those which were clearly mixed with financial issues (such as four way meetings and negotiations) or for which a portion likely had to do with the SJM by half. The result is that Ms. Balwin’s time (33 x $400) and disbursements ($250.25) and HST ($1748.53) equals $15,198.78. Partial recovery of those costs is $9,119.27.
[20] There shall thus be an order that Ms. Randazzo pay to Mr. De Riso $9,119.27 in costs for this matter, which costs shall be subject to post-judgment interest.
Madam Justice Tracy Engelking
Released: October 24, 2018
OTTAWA COURT FILE NO.: FC-16-1061
DATE: 2018/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ricardo De Riso
Applicant
– and –
Nunziatina Daniela Randazzo
Respondent
REASONS FOR JUDGMENT
ENGELKING J.
Released: October 24, 2018