Court File and Parties

Court File No.: 1429-17 Date: 2019-04-08 Superior Court of Justice - Ontario

Re: Danijela Ninkovic, Applicant And: Ljubisa Utjesinovic, Respondent

Before: The Honourable Madam Justice L. Madsen

Counsel: Alex Toolsie, Counsel for the Applicant John J. Cvetkovic, Counsel for the Respondent

Heard: In Chambers

Costs Endorsement

The Honourable Madam Justice L. Madsen

[1] This is the costs endorsement in relation to the nine-day trial regarding whether the maternal grandmother, Danijela Ninkovic [“Danijela”] should have access to her grandson, Mile Ninkovic, over the objection of Mile’s father, Ljubisa Utjesinovic [“Ljubisa”].

[2] On January 25, 2019, this court ruled that Danijela should have access to Mile every fourth weekend from Saturday at 10:00 a.m. until Sunday at 6:00 p.m. The court imposed restrictions on that access, including that Mile’s mother, Andrijana Ninkovic [“Andrijana”], and Mile’s paternal grandfather, Boban Ninkovic [“Boban”], not be present for that access. The court also set out a transitional schedule given that there had been a gap since Mile had spent time with his grandmother.

[3] For the reasons which follow, this court orders that Ljubisa shall pay to Danijela the sum of $10,000, inclusive of HST and disbursements, on account of costs.

Positions of the Parties

[4] Danijela seeks costs on a full recovery basis in the amount of $25,464.27. She argues that she was the successful party, and that Ljubisa was wholly unsuccessful.

[5] Danijela asserts that in determining costs, the court should find that Ljubisa was unreasonable, both in denying access for one and a half years, as well as in his conduct of the litigation. In particular she notes that his 11th hour request for disclosure caused an adjournment of the trial from October 4, 2018 to December 10, 2018. Danijela also stresses that Ljubisa made no offers to settle.

[6] Ljubisa argues that no costs should be payable, or in the alternative that any cost order be on a partial recovery basis only. Ljubisa states that his denial of access was reasonable in light of his concern about Mile’s potential exposure to conflict in Danijela’s home. He notes that while he did not make any offers to settle, neither did Danijela.

[7] Ljubisa argues that it was Danijela who took an unreasonable position in the litigation, seeking access each weekend or in the alternative, access every other weekend. He points out that the court ordered considerably less access than that sought by Danijela.

[8] Ljubisa states that the court should consider his financial circumstances as a custodial parent before awarding costs, noting that he is a “truck driver” and not a “rich person.” He also asserts that Danijela had no incentive to settle as she received Legal Aid and would have no cost consequence of the trial “win, lose, or draw.”

Law and Analysis

[9] Modern costs rules are designed to foster four fundamental purposes: to partially indemnify successful litigants; to encourage settlement; to discourage and sanction inappropriate behaviour by litigants; and, to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules [the “Rules”]. See: Serra v. Serra, 2009 ONCA 395 at para. 8; Mattina v. Mattina, 2018 ONCA 867 at para. 10.

Success

[10] Under Rule 24(1) of the Rules there is a presumption that the successful party is entitled to costs. Berta v. Berta, 2015 ONCA 918 (O.C.A.). The presumption that a successful party is entitled to costs applies equally to custody and access cases. Mattina, above, at para. 12.

[11] Consideration of success is thus the starting point in determining costs. Sims-Howarth v. Bilcliffe, 2000 ONSC 22584

[12] To determine whether a party has been successful, the court should consider both the positions taken by each party at trial, as well as how the order compares to any settlement offers that were made. Lawson v. Lawson, 2008 CarswellOnt 2819 at para. 7.

[13] The conduct of the parties including the presence or absence of offers to settle, is a relevant factor for consideration in determining the matter of costs. The failure of the successful party to make an offer to settle may be considered unreasonable behaviour. See Rule 24(5).

[14] Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly. This includes taking appropriate steps to save time and expense. Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See: Laing v. Mahmoud, 2011 ONSC 7099 at para. 7.

[15] Having said that, there is no obligation to make an offer to settle in particular where the issue is one which does not lend itself to compromise. The situation must be one where it is realistic to expect offers to settle to be made. Beaver v. Hill, 2018 ONCA 840 at para. 15.

[16] In this case, Danijela was successful in relation to her position at trial. She was successful in that the court did order access. However, she was only partly successful: the court ordered considerably less access than she sought, namely one weekend each month from Saturday to Sunday rather than every weekend or alternate weekends.

[17] Danijela did not serve an offer to settle, and she should have done so. Having regard to the caselaw, it would have been realistic of her to anticipate that the court might order less access than she sought, while still ordering some access. It was not reasonable of her to fail to put an offer to Ljubisa for his consideration.

[18] Danijela submitted that while she did not serve an offer to settle, neither did Ljubisa. In my view, the situation from Ljubisa’s perspective is not analogous. His position was that there be no access, at all, full stop, and that Danijela’s claim be dismissed. He did not want Mile to have any contact with Danijela or her family in light of his view that they create problems and that this would not be in Mile’s best interests. In that circumstance, it was not realistic to expect that an offer to settle be made. See Beaver v. Hill, above.

[19] Thus, while I consider it unreasonable of Danijela to have made no offer to settle, having regard to Beaver v. Hill, above, Ljubisa’s failure to make an offer to Danijela is not material to my determination of costs.

Legal Aid Retainer

[20] In this case, Ljubisa argues that the court should award a lower amount of costs in light of the fact that Danijela was legally aided. On the caselaw, this court gives no effect to that submission.

[21] It is well established that the receipt of legal aid is not a factor in determining costs. See Alvarez v. Smith, 2008 ONSC 1337 at paras. 17 - 19; Graham v. Sherman, 2015 ONSC 1882 at para. 4.

[22] Pursuant to subsection 46(1) of the Legal Aid Services Act, 1998, "the costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services." A legally aided client "stands before the court in exactly the same position as any other litigant." See: Baksh v. Baksh, 2017 ONSC 3997, per Justice R.P. Kaufman.

Ljubisa as Custodial Parent

[23] Ljubisa submits that in setting any amount of costs, the court should be mindful that he is the custodial parent of the child, Mile, and is his sole support. He states that he is a truck driver and not a “rich person.” He argues that any costs order against him would negatively impact the child from a financial perspective.

[24] Ljubisa relies on C.A.M. v. D.M., in which Justice Rosenberg held that the Family Law Rules have not completely removed the discretion of the trial judge in setting costs, and that the financial circumstances of the parties may be taken into account. Justice Rosenberg stated, “In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent.” See para. 42.

[25] A parent is not absolved from a costs disposition simply because he or she is the custodial parent, particularly where the court is not persuaded that the child’s best interests would be negatively affected. The relevant issue is the impact of the costs disposition on the child. Cassidy v. McNeil, 2010 ONCA 218, 2010 CarswellOnt 1637 (O.C.A). Evidence is required to make that determination.

[26] In this case, as in Cassidy v. McNeil, above, the fact that Ljubisa is the custodial parent is a relevant factor. However, the evidence at trial was that Ljubisa’s gross income as a truck driver was approximately $200,000 in 2017. There was no evidence of his net income. He lives with his parents. There is not enough evidence before the court to determine that costs should be reduced in light of Ljubisa being the custodial parent.

Quantum

[27] Under Rule 24, the Judge has discretion to award an amount of costs which appears just in all of the circumstances. Reasonableness and proportionality are the overriding considerations. See Beaver v. Hill, cited above.

[28] An award of costs is subject to: a. the factors listed in subrule 24(12), b. subrule 24(4) pertaining to unreasonable conduct of a successful party, c. subrule 24(8) pertaining to bad faith, d. subrule 18(14) pertaining to offers to settle, and e. the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918 at para. 94.

[29] Costs are not intended to be a dollar for dollar calculation of the amount of expenses incurred by the successful party. A costs order should reflect what the court views as the fair and reasonable amount that should be paid by the unsuccessful party. Farjad-Tehrani v. Karimpour, 2009 ONSC 2186 (S.C.J.) at para. 32, aff’d 2010 ONCA 264 (O.C.A.) at para. 4.

[30] Under Rule 24(12), in setting the quantum 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.

[31] In terms of assessing each party’s behaviour, I have considered Danijela’s argument that Ljubisa caused an adjournment of the trial from October 4 to December 10, 2018. However, the court has already assessed costs against Ljubisa in relation to that issue, in the amount of $1,500. There is no basis to again assess costs against Ljubisa on account of the adjournment.

[32] I have also considered Danijela’s argument that Ljubisa’s position on access was unreasonable in light of the determination of the Family and Children’s Services of Waterloo Region that Danijela was able to care for Mile appropriately. However, neither party had that evidence until after the trial was adjourned on October 4, 2018 for the disclosure to be obtained. I am not prepared to find Ljubisa’s conduct unreasonable in that regard.

[33] I have reviewed Danijela’s counsel’s Bill of Costs, which sets out fees in relation to counsel and a law clerk totalling $22,310.00, before HST. In addition, disbursements total $253.97. Counsel’s hourly rate is $250.00, which is reasonable in light of his five years of experience. Counsel has included time commencing May 15, 2018, just before the trial management conference. In his costs submissions, Ljubisa takes no exception to the Bill of Costs of Danijela’s counsel.

[34] Considering all of the factors set out in Rule 24(12), and the requirements of Rule 24 more generally, I find that the fair, reasonable, and proportionate amount that Ljubisa shall pay on account of costs not already assessed is $10,000 inclusive of HST and disbursements, which amount is payable within 30 days.

Madsen J. Date: April 8, 2019