ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 18-95
DATE: 2018/11/29
BETWEEN:
Louise Mary Mignault
– and –
Norman Adrian Lauzon
Edward C. Castle, counsel for the Applicant
A. Lawrence Filion, counsel for the Respondent
HEARD: In chambers
rULING ON COSTS
Desormeau, j.
Overview
[1] On August 17, 2018, the Respondent, Dr. Norman Lauzon, brought a motion for temporary exclusive possession of the matrimonial home and its contents. The Applicant, Ms. Louise Mignault, brought a cross-motion for temporary exclusive possession of the matrimonial home and for spousal support. As alternate relief to the request for exclusive possession, she advanced mutual possession of the matrimonial home.
[2] On September 17, 2018, I released my ruling on the motion, granting the Respondent temporary exclusive possession of the matrimonial home, effective November 1, 2018 at 4:00 p.m., and permitted Ms. Mignault to remove her personal contents from the matrimonial home, particularly those which were kept in her bedroom. I indicated that if the contents could not be agreed upon, then counsel could submit lists and argument, in writing, regarding any contested items. If need be, a date could also be set through trial coordination to resolve this issue. I also ordered that the Respondent Husband pay interim spousal support to the Applicant Wife in the amount of $1,600.00 per month, commencing September 1, 2018.
[3] The parties were invited to make written submissions regarding costs. This is my decision following receipt of those submissions.
Background
[4] Prior to the motion being heard, both parties were residing in the matrimonial home following separation. This was causing them each significant stress and it was no longer a tenable situation. Though both parties presented with significant health issues, I was persuaded that to remove Dr. Lauzon from the matrimonial home would be more detrimental to his health than to Ms. Mignault. Furthermore, I found that the balance of convenience weighed in favour of the Respondent.
[5] Ms. Mignault was requesting imputation of income to Dr. Lauzon, as well as spousal support in the amount of $2,000.00 per month commencing on the date when she must vacate the matrimonial home, or $1,200.00 per month toward her living expenses while remaining in the matrimonial home.
[6] For reasons contained in the ruling on the motion, I was not persuaded to impute income to Ms. Mignault, as requested by Dr. Lauzon. However, I did find that, on an interim basis, Ms. Mignault had established a prima facie case for entitlement to spousal support on a needs and means based, non-compensatory basis. I imputed income to Dr. Lauzon, and ultimately determined that he would pay spousal support to Ms. Mignault in the amount of $1,600.00 per month, commencing September 1, 2018.
Issue: costs
[7] 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 within the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[8] Rule 24 of the Family Law Rules (FLR) addresses the issue of costs, and states that there is a presumption that a successful party is entitled to the costs of a motion.
[9] 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.
[10] Modern costs rules are designed to foster 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: 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.
[11] 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: Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.); Lawrence v. Lawrence, 2017 ONCJ 431, at para. 28.
[12] 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.
[13] 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.
[14] 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.
[15] In Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 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.
[16] 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)
[17] A successful party in a family law case is presumptively entitled to costs, subject to the favours set out in Rule 24 FLR. The Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded. See Beaver v. Hill, 2018 ONCA 840, at paras. 9 and 10.
[18] 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.
[19] Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs. Proportionality is a core principle that not only governs the conduct of the proceedings generally, but is specifically applicable to fixing costs. Beaver v. Hill, supra, at paras. 12 and 19.
[20] 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.
[21] Rule 18(14) 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:
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).
[22] 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 Rule 18(14) FLR: Rule 18(15) FLR.
[23] 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 Rule 18(14) FLR does not apply: Rule 18(16) FLR.
[24] 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.
[25] 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 CanLII 28137 (ON SC), 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)
[26] 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)
[27] 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.
[28] 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 CanLII 23496 (ON SC), 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.
Analysis
[29] 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 the motion were important to both parties, and fairly complex. Both parties submitted fulsome affidavits in support of the relief sought.
(i) each party’s behaviour:
Both parties made offers to settle which were open for acceptance up to the commencement of the motion.
The Wife’s behaviour was reasonable in that she attempted to compromise on the issue of exclusive possession.
Contrary to the Wife’s assertions, the court does not find that the Husband displayed an attitude of arrogance or argued his position vociferously. Both parties were entitled to reasonably advocate for their positions at the motion.
The Wife’s behaviour was unreasonable in advancing unsupported claims such as prior affiliations between Dr. Lauzon and Dr. Low.
Further, the Wife behaved unreasonably in advancing post motion conduct in her costs submissions, which inappropriate and irrelevant. In response to same, the Husband advanced equally improper and irrelevant post motion conduct.
(ii) the time spent by each party: Both parties submitted bills of costs which were in similar ranges. I take no issue with either one of them.
(iii) any written offers to settle, including offers that do not meet the requirements of Rule 18:
While both parties made valid offers to settle, neither of them obtained an order that was as favourable as or more favourable than their offers.
Though the Husband was successful at the issue of exclusive possession, he was unsuccessful in the timelines to vacate the home, exclusive possession of the contents, and spousal support.
At the motion, if required to vacate the home, the Wife sought spousal support of $2,000.00 per month commencing on the date she must vacate. The Wife’s non-severable offer to settle suggested a compromise position of mutual possession of the matrimonial home with payments of $1,200.00 per month by the Husband toward her living expenses while residing in the home. While the Wife was successful in her claim for spousal support, she was not successful not on quantum or on the issue of mutual possession of the home, notably as the offer was only acceptable in whole, and not in part.
(iv) any legal fees, including the number of lawyers and their rates: Both parties were represented by senior counsel whose rates and hours were both proportional and reasonable.
(v) any expert witness fees, including the number of experts and their rates: n/a
(vi) any other expenses properly paid or payable: n/a
(b) any other relevant matter: n/a
[30] 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.
[31] 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, supra; Slongo v. Slongo, supra). 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)
[32] 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)
[33] 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)
[34] It was advanced by the Husband that exclusive possession was the overarching issue. In support of same, he outlined the number of paragraphs from the affidavit evidence and factums which addressed exclusive possession as opposed to spousal support. It is clear that there were more paragraphs regarding the former than the latter. However, unlike Fisher v. Fisher, 2015 ONSC 2020, there was no primary issue. The court finds that there were two principal issues argued at the motion: exclusive or mutual possession of the matrimonial home, and spousal support. These issues went hand in hand, and each party enjoyed success on one of the two key issues.
[35] As alluded to above, neither party met the requirements of Rule 18(14) FLR as neither of them obtained an order that was as favourable as or more favourable than their offers. The offers were nonetheless considered in the context of Rule 18(16) FLR.
[36] After weighing all of the above, the behaviour of both parties, and divided success, I find it is appropriate to order that each party shall bear their own costs of the motion.
Disposition
[37] Each party shall bear their own costs of the motion.
Madam Justice Hélène C. Desormeau
Released: November 29, 2018
Mignault v. Lauzon, 2018 ONSC 7140
COURT FILE NO.: 18-95
DATE: 2018/11/29
ONTARIO
SUPERIOR COURT OF JUSTICE
Louise Mary Mignault
– and –
Norman Adrian Lauzon
Ruling on COSTS
Madam Justice Hélène C. Desormeau
Released: November 29, 2018