Court File and Parties

COURT FILE NO.: Parry Sound File# FS-16-60-0000 DATE: 20190214 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DOUG IRVIN PAWIS Applicant – and – DEBRA ANNE JONES Respondent

COUNSEL: M. Trenholme, for the Applicant J. Herbert, for the Respondent

HEARD: In Writing

Decision on Costs

Wilcox, J.

[1] The respondent brought a motion that was heard on November 13, 2018, following up on previous motions and orders with respect to disclosure required from the applicant. The respondent was successful in obtaining an order on that motion. In my endorsement dated November 14, 2018, I invited costs submissions from the parties, if they were unable to agree on costs. Submissions have now been received from the respondent, but not from the applicant.

[2] The respondent's costs submissions indicated the following:

1. On November 20, 2018, an offer to settle the costs of the November 13, 2018, motion was sent to the applicant’s counsel. The amount was for something less than substantial indemnity costs.
2. That offer was accepted in writing. The applicant’s counsel requested a consent and draft order.
3. On November 29, 2018, the respondent’s counsel sent draft minutes of settlement regarding the agreed upon costs and a draft order to the applicant’s counsel’s office.
4. Having received no response, the respondent’s counsel wrote again to the applicant’s counsel on December 21, 2018, noting that the executed minutes of settlement and approved draft order for costs had not been received and that, if they were still not received by January 9, 2019, they would seek to enforce the agreement as to costs and additional costs for the wasted time.
5. As of January 22, 2019, the costs settlement documents had not been returned by the applicant’s counsel to the respondent’s counsel.

[3] In the circumstances, the respondent now seeks the total amount of her costs for the motion plus additional costs for having to file costs submissions after the applicant failed to follow through on the agreement regarding costs.

[4] Section 131(1) of the Courts of Justice Act states that:

1. Subject to the provisions of an Act or Rules the court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom to what extent the costs should be paid.

[5] Costs in family law cases are provided for in rule 24 of the Family Law Rules. Rule 18 expands on the treatment of offers to settle in the computation of costs.

[6] A useful summary of the law of costs in family law cases is found in Smith v. Moulder, [2017] O.J. No. 807, where H. A. Vogelsang J. stated:

[7] In Blanchard v. Walker, 2012 ONCJ 799 (Ont. Ct.), Curtis J. said:

14 The courts have a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act, s. 131(1), which sets out specific principles regarding costs:

(a) the costs of a case are in the discretion of the court; (b) the court may determine by whom costs shall be paid; and, (c) the court may determine to what extent the costs shall be paid.

15 Modern costs rules are designed to foster three fundamental purposes: Fong v. Chan (1999), 46 O.R. (3d) 330, 181 D.L.R. (4th) 614 (Ont. C.A.), para. 24, and Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.):

(a) to indemnify successful litigants for the cost of litigation; (b) to encourage settlement; and (c) to discourage and sanction inappropriate behaviour by litigants.

16 Rule 2 (2) of the Family Law Rules 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 of the rules: Sambasivam v. Pulendrarajah, [2012] O.J. No. 5404, 2012 ONCJ 711 (Ont. Ct) para. 37.

[8] Later decisions augment the general purposes of costs. The fifth, to protect and foster access to justice, was described by Czutrin J. in Jordan v. Stewart, 2013 ONSC 5037 (Sup. Ct.).

[7] Previously, Pazaratz J. had stated in Chomos v. Hamilton, [2016] O.J. 5211 at paras 8-13:

[8] Rules 18 and 24 of the Family Law Rules govern the determination of both liability for costs and the amount of costs. While these rules have not completely eliminated judicial discretion, the rules nonetheless circumscribe the broad discretion previously granted to the courts in determining costs. C.A.M. v. D.M.; Andrews v. Andrews, [1980] O.N. No. 1503 (Ont. C.A.); Wilson v. Kovalevi 2016 ONSC 163 (SCJ).

[9] Rules 18 and 24, and most of the case law focus on two words: “Success” and “Reasonableness”. The latter entails two components:

(a) Reasonableness of behaviour by each party. (b) Reasonableness of the amount of costs to be awarded.

[10] In Serra v. Serra 2009 ONCA 395 the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

(a) To partially indemnify successful litigants for the cost of litigation. (b) To encourage settlement; and (c) To discourage and sanction inappropriate behaviour by litigants.

[11] The assessment of costs is not a mechanical exercise. It’s not just a question of adding up lawyer’s dockets. Boucher et al. v. Public Accountants Council for the Province of Ontario; 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe 2010 ONSC 1044 (SCJ).

[12] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Selznick v. Selznick 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis; Serra (supra); Murray v. Murray (2005) 46626 (Ont. C.A.); Guertin v. Guertin 2015 ONSC 5498 (SCJ).

[13] The starting point in any costs analysis is the presumption that a successful party is entitled to costs. Rule 24(1); Sims-Howarth v. Bilcliffe.

[8] I have considered the costs submissions filed by the respondent, together with her bill of costs. I have also taken into account the factors enumerated in the Family Law Rules.

[9] In particular, I note that these motions were with respect to disclosure. Disclosure is very important in these matters in order that the parties have the necessary information to negotiate a resolution, failing which the court has the necessary information upon which to make informed decisions. The rules provide extensively for disclosure. There should be little need for court proceedings to enforce the rules and to obtain disclosure. Nevertheless, the respondent has had to bring motions to try to obtain it, with limited success. The applicant’s conduct in this regard is without explanation and is unreasonable. He was content to seek the court’s assistance when he brought his application. He is not now free to pick and choose which of the court’s rules to follow when it suits him.

[10] In these circumstances, I conclude that the respondent’s request is reasonable. The applicant shall pay to the respondent her total costs of $2,476.96 as set out in the respondent’s bill of costs, plus an additional $350.00 for the respondent having to pursue costs when the applicant failed to follow through on the costs settlement, for a total of $2,826.96, inclusive of fees, disbursements and HST, within 30 days.

The Honourable Justice James A. S. Wilcox

Released: February 14, 2019