Court File and Parties
COURT FILE NO.: FC-17-2043 DATE: 2019/05/13 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Michael Andrew Sealey, Applicant -and- Cherie Nicole Hoyte, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: John Guest, for the Applicant Respondent, Self-Represented Beverley Johnston, Children’s Lawyer
HEARD: In Writing
Costs Endorsement
[1] This endorsement determines costs following the decision released on March 7, 2019 in Sealey v. Hoyte, 2019 ONSC 1537. In that decision, the Court granted Mr. Sealey’s request for interim unsupervised access.
[2] Both parties have provided written submissions on costs.
[3] Having considered the parties’ submissions, the Applicant’s bill of costs, and the Family Law Rules [1], I award the Applicant costs in the amount of $5,500 inclusive of HST and disbursements, payable in the amount of $500 per month commencing June 1, 2019.
Applicant’s Position
[4] The Applicant, Mr. Sealey, seeks his costs of the motion in the amount of $7,234.02. Mr. Sealey argues that he was the successful party and is presumptively entitled to costs. He served an offer to settle on October 26, 2018. He acknowledges that this offer was withdrawn on February 6, 2019. It was replaced by another offer that provided for the same access terms, but required Ms. Hoyte to pay costs.
[5] Mr. Sealey seeks costs on a full indemnity basis from the date of his October 26, 2018 offer, and partial indemnity costs prior to that date.
[6] Mr. Sealey also asserts that the Respondent, Ms. Hoyte, acted unreasonably in failing to serve and file any responding material despite receiving extensions to do so.
Respondent’s Position
[7] The Respondent, Ms. Hoyte, filed extensive material with respect to costs. Ms. Hoyte’s main position is that Mr. Sealey’s conduct was unreasonable and that an award of costs would impose a financial hardship upon her. Ms. Hoyte states she has incurred totals costs of $2,633.90, not including time for missed employment. Most of Ms. Hoyte’s material relates to various events that took place between the parties, dating back to 2009, in support of the position she took on the motion to oppose unsupervised access.
Factors in Determining Costs
[8] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants and to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules) [2].
[9] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.
[10] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs [3]. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party [4].
[11] 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.
[12] 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 Rule 18(14).
[13] Rule 18(14) provides that a party is, unless the court orders otherwise, entitled to costs on a full recovery basis from the date an offer was served, 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).
[14] 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.
[15] 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.
[16] 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.
Success of the Parties
[17] The interim access that was ordered on the motion was as follows:
- Mr. Sealey shall have interim unsupervised access to the child L.V. as follows: i. on the first Saturday after the Children’s Lawyer has met with the child to explain the change in access, for a period of three hours, from 11:30 a.m. to 2:30 p.m.; ii. on the following Saturday (the second Saturday), for a period of four hours, from 11:30 a.m. to 3:30 p.m.; iii. on the third Saturday, for a period of five hours, from 11:00 a.m. to 4:00 p.m.; iv. on the fourth Saturday, for a period of six hours, from 10:00 a.m. to 4:00 p.m.; and v. continuing thereafter on each Saturday from 9:30 a.m. to 4:00 p.m.
- In addition, Mr. Sealey will have access to the child on June 29, 2019 from 9:30 a.m. to 7:00 p.m. (or such other time as the parties may agree, in writing, to adjust these times) to attend Mr. Sealey’s wedding.
[18] Neither party achieved what they were seeking on the motion. Ms. Hoyte’s position was that Mr. Sealey’s access should continue to be supervised. She was not successful in achieving this relief.
[19] At the motion, Mr. Sealey initially sought fairly extensive interim access from Friday after school to Monday morning and alternate midweek access from Wednesday after school to Friday at 6 p.m. He was not successful in achieving this relief.
[20] At the motion, when Mr. Sealey was asked to address the impact of such a significant change from the current access schedule, he proposed a graduated schedule that began with unsupervised access every Saturday for three hours, increasing in duration over six weeks when it would extend to include overnights, and then increasing again to eventually include access every weekend, alternating between a Saturday only access visit, to a Saturday morning to Sunday evening access visit. This graduated schedule was also not achieved at the motion.
[21] However, when compared to Mr. Sealey’s offers to settle, detailed below, I find that Mr. Sealey was the successful party on the motion. He is therefore presumptively entitled to his costs of the motion.
Offers to Settle
[22] Mr. Sealey served three offers to settle. Ms. Hoyte did not serve any offers to settle. These offers, or lack of offers on Ms. Hoyte’s part, assist in determining that Mr. Sealey was the successful party on the motion. These offers must also be reviewed to determine whether Mr. Sealey is presumptively entitled to costs on a full recovery basis from the date the offer was served.
[23] On September 6, 2018, Mr. Sealey served an offer to settle interim access and custody based on the parties having joint custody, with unsupervised access on alternating weekends, and a midweek visit. This offer does not trigger the cost consequences of Rule 18(14) because the order on the motion was less favourable to Mr. Sealey than the terms of his offer.
[24] On October 26, 2018, Mr. Sealey served a second offer that was silent as to custody, and provided for him to have unsupervised access every Saturday from 1 p.m. to 3 p.m., with access to be reviewed after 3 months. The order on the motion was more favourable to Mr. Sealey than this offer. However, Mr. Sealey acknowledges having withdrawn this offer prior to the motion, and as such it does not trigger the cost consequences of Rule 18(14).
[25] On February 6, 2019, Mr. Sealey made a third offer that mirrored the October 26, 2018 offer but added cost consequences if Ms. Hoyte accepted the offer. As a term of accepting the offer, Ms. Hoyte was required to pay costs fixed at $4,500 plus any costs incurred after February 11, 2019. Just as in the case of the second offer, the order on the motion, with respect to access, was more favourable to Mr. Sealey than this offer. Whether the order on the motion is as favourable as or more favourable to Mr. Sealey than the totality of his offer, which includes costs, depends on whether Mr. Sealey would have been entitled to costs fixed at $4,500 (inclusive of disbursements and HST) as of February 11, 2019.
[26] Mr. Sealey has provided his counsel’s invoice for the period from September 6, 2018 to the hearing of this motion on February 21, 2019. Based on these invoices, which include the individual time dockets, Mr. Sealey’s full recovery costs, inclusive of disbursements and HST, totaled approximately $4,000 as of February 11, 2019. Mr. Sealey’s full recovery costs were in fact less than the amount of costs than the third offer required Ms. Hoyte to pay. As such, I find that Mr. Sealey would not have been entitled to costs fixed at $4,500 as of February 11, 2019, and that, therefore, the third offer required costs consequences that were more favourable to him than the result on the motion. Accordingly, the third offer also does not trigger the cost consequences of Rule 18(14).
[27] Although Mr. Sealey’s second and third offers do not trigger Rule 18(14), when considered along with all of the other circumstances, they indicate that he was the successful party on the motion and is presumptively entitled to costs.
[28] In addition, Rule 24(12)(a)(iii) specifically directs the Court to consider the reasonableness and proportionality of any written offers, including offers that do not meet the requirements of Rule 18, as they relate to the importance and complexity of the issues. To this end, Mr. Sealey’s offers are a factor that favour a higher award of costs, given his willingness to settle for a less favourable access regime in his offer of October 26, 2018, even though this offer was subsequently withdrawn and replaced by a similar offer with higher costs consequences.
Ms. Hoyte’s Behaviour
[29] Rule 24(12)(a)(i) specifically directs the Court to consider the reasonableness and proportionality of each party’s behavior as it relates to the importance and complexity of the issues. The issue of access was important to both parties, particularly given Ms. Hoyte’s longstanding insistence that access be supervised.
[30] I find Mr. Sealey’s behavior was reasonable and proportional in the circumstances.
[31] I find Ms. Hoyte’s behavior in failing to file responding material, despite being provided with extensions to do so, was unreasonable conduct that militates in favour of a higher award of costs against her.
Other Factors
[32] Prior to October 16, 2018, Mr. Sealey incurred costs of $968.98 – he seeks $581.39 (60%) as partial indemnity for these costs. His full recovery for costs incurred after October 26, 2018 is $6,652.63. These costs are inclusive of disbursements and HST.
[33] The material filed in this motion, including by Ms. Hoyte, was extensive, detailed, and dated back a number of years. The breadth of Mr. Sealey’s responding material was reasonable given the nature of Ms. Hoyte’s objections to unsupervised access. I find that the time spent by Mr. Sealey’s lawyer and the fees claimed by him are reasonable and proportional as it relates to the importance and complexity of the issues.
[34] Ms. Hoyte has only filed one sworn financial statement in the Continuing Record, which was sworn on November 14, 2017. That statement sets out Ms. Hoyte’s income, expenses, assets and debts. The information contained in Ms. Hoyte’s financial statement does not support a finding that the award of costs below should be reduced due to concerns that it would impose a financial hardship on Ms. Hoyte.
Disposition
[35] Taking all of these factors into consideration, I order Ms. Hoyte to pay costs to Mr. Sealey for the motion heard on February 21, 2019 fixed in the amount of $5,500, inclusive of HST and disbursements. These costs shall be payable in the amount of $500 per month, commencing June 1, 2019 and continuing on the first day of each subsequent month until paid in full.
[36] This order shall bear post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”).
Justice P. MacEachern Date: May 13, 2019
COURT FILE NO.: FC-17-2043 DATE: 2019/05/13 ONTARIO SUPERIOR COURT OF JUSTICE RE: Michael Andrew Sealey, Applicant -and- Cherie Nicole Hoyte, Respondent BEFORE: Justice P. MacEachern COUNSEL: John Guest, for the Applicant Respondent, Self-Represented Beverley Johnston, Children’s Lawyer costs ENDORSEMENT Justice P. MacEachern
Released: May 13, 2019