Court File and Parties

COURT FILE NO.: 495/16 DATE: 2018 11 19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Laura Schuurman, Applicant AND: Melissa Dawn Schuurman, Respondent

BEFORE: Justice G. D. Lemon

COUNSEL: Michael J. Ruhl, Counsel for the Applicant Melissa Dawn Schuurman, In Person

HEARD: In Writing

Costs Endorsement

The Issue

[1] On October 12, 2018, I dismissed Melissa’s motion for the release of funds obtained by Jennifer by garnishment. Jennifer therefore seeks costs fixed in the amount of $6,043.81. In response, Melissa submits that there should be no costs.

Authorities

[2] In Mattina v. Mattina, 2018 ONCA 867, our Court of Appeal recently said:

[9] Section 131(1) of the Courts of Justice Act, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court’s analysis on costs in family law disputes.

[10] This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly, and Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

[11] The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution.

[12] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal and the presumption that a successful party is entitled to costs applies equally to custody and access cases.

[13] Consideration of success is the starting point in determining costs. This presumption does not, however, require that the successful party always be entitled to costs. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party.

[14] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs: (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.

[15] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[16] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably: 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.

[17] Rule 24(5) provides guidance on how to evaluate reasonableness: 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.

[18] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith: 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. (Citations omitted).

Analysis

[3] As I have made a number of costs orders in this ongoing litigation, the parties are well familiar with the principles involved.

[4] Jennifer was successful and is presumptively entitled to her costs. Jennifer’s counsel was required to attend at court twice and there were thick materials filed by both parties. All issues were dealt with on an urgent basis.

[5] Jennifer made an offer to settle and Melissa did not. Although Jennifer did better than one term of her offer, overall, Melissa did better at court than had she accepted the offer to settle. Jennifer is, however, given credit for at least making an offer.

[6] As I have written before in this action, Melissa has limited ability to pay costs.

[7] Melissa submits that Jennifer was unreasonable in issuing the garnishment. By law, Jennifer is entitled to do so and I do not find that she was unreasonable in that regard. Similarly, Melissa is in difficult financial circumstances and was without counsel at the time of her motion. She was wrong in law but her position was not unreasonable.

[8] I have already dealt with the issue of costs and ability to pay in other costs endorsements in this file. Whatever funds are not paid by Melissa, affects the children with Jennifer. Conversely, any funds taken from Melissa, hurt the children while they are with her. In my view, subject to appellate resolution, there is no correct answer to that conundrum.

[9] Taking all of those factors into consideration, I order Melissa to pay costs fixed in the amount of $5,000.00.

Justice G. D. Lemon Date: November 19, 2018

COURT FILE NO.: 495/16 DATE: 2018 11 19 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Jennifer Laura Schuurman Applicant – and – Melissa Dawn Schuurman Respondent COSTS ENDORSEMENT Lemon, J Released: November 19, 2018