Court File and Parties

COURT FILE NO.: FC-18-1170 DATE: 2019/05/30 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Fabian Alvarez, Applicant AND Susan Novo, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Emilie Eydt, for the Applicant Edward C. Conway, for the Respondent

HEARD: In Writing

Costs ENDORSEMENT

[1] The Applicant’s motion was heard and decided on February 26, 2019. At the opening of the hearing he withdrew some relief requested in his Notice of Motion, including for supervised access to the children, sale of the matrimonial home and spousal support. The motion proceeded on three issues only. These were his claim for an advance on an equalization payment, to amend a restraining order to allow written and telephone contact with one of the children, and for an order enabling him to pick up his personal belongings from the matrimonial home.

[2] In my handwritten endorsement I ordered the Respondent to make an advance on the equalization payment of $100,000, which was the amount she had proffered before the motion. My reasons for not ordering more than the Respondent’s proffer were that the order requested was not routine and there were several property issues still in dispute, including that the Applicant had not yet provided a valuation of his own pension. The Respondent was the successful party on this issue.

[3] A partial amendment to the restraining order was made, to allow the father to respond once to any text or email he received from the child. The order was conditional on the almost 16 year old consenting to forward a complete record of any such communications to her counsel, with the knowledge that these records may be introduced into evidence. This term was included due to evidence that the child had received an inappropriate email purporting to be from her father’s psychologist, which the named psychologist denied sending. I also provided that the child was free to commence, continue or discontinue the contact at any time.

[4] Success on this issue divided between the parties.

[5] The Applicant obtained an order that he could arrange through counsel for a third party to pick up his personal belongings from the matrimonial home within 30 days. These items were identified in his affidavit and according to the Respondent were boxed and in the garage. I also ordered the Respondent to arrange for a knife set belonging to the Applicant but in her father’s possession to be included. If the pick up was not completed in 30 days the property was deemed abandoned.

[6] The Applicant was technically successful on this issue, but the issue was not opposed in any real sense. The Respondent detailed efforts she had made to have the Applicant make arrangements to retrieve his belongings. What was required was an end date for this to occur.

[7] The parties did exchange offers. The Respondent’s offer to settle the motion addressed spousal support and costs. The Applicant did not deliver an offer to settle the motion, but both he and the Respondent had made offers to settle all issues in the case. These offers did not assist my determination of the costs of the motion.

[8] The Applicant’s submissions focused on divided success which I took as being in support of no order for costs. The Respondent claimed full recovery costs based on success and on alleged unreasonable conduct by the Applicant. I conclude that the Respondent is the more successful party on the motion and is entitled to an award of costs.

[9] Each party provided a Bill of Costs. The full costs incurred by the Respondent were $25,040.80. The full costs incurred by the Applicant were $20,268.25. Neither party made submissions to challenge the time spent or hourly rate of the opposing counsel. As counsel to the party entitled to costs, Mr. Conway’s hourly rate of $400 is reasonable, as are the hours spent on the file in relation to the motion.

[10] In terms of the amount of costs I have taken into account that the Applicant only withdrew his claim for important temporary relief at the hearing. The Respondent had already incurred costs to respond to those issues. The lack of notice of withdrawal put the Respondent to the added expense of preparing to argue those issues. Failing to give timely notice of withdrawal was unreasonable litigation conduct on the Applicant’s part.

[11] The Respondent also says the original return date chosen by the Applicant for his motion, namely November 1, 2018, was unreasonable. The OCL notified the parties on August 24, 2018 that it would provide a lawyer for the children together with a clinician to conduct an independent inquiry into the circumstances of the case, which would include interviews with the parties and children, and could include contact with third party sources and observations of the children and each parent. The Respondent submits that the original motion date was premature since it was clear that the OCL inquiry would not be completed by then. I agree. The Respondent had already incurred costs to reply to the motion for access prior to the adjournment and before the OCL held its disclosure meeting on December 14, 2018 advising that the views of the children were against access whether supervised or not.

[12] Family Law Rules, O. Reg. 114/99 as am, r. 24(12) now includes reasonableness and proportionality in relation to the list of factors to be considered in determining an appropriate amount of costs. Obtaining a premature return date for the motion was litigation behavior that was not reasonable. The Applicant must be taken to have known that the court would not hear his motion without the input from the OCL, which could not have been realistically expected by November 1st. The early date increased the costs to the individual litigants by requiring preparation of materials for issues that may not, and in fact did not proceed.

[13] Nor was the November 1st date proportional. It was a form of place holding. It occupied space in the calendar of a busy Family Court, thereby delaying access to justice for litigants who were ready to proceed on that date.

[14] Place holding does not comply with the obligations of FLRs r. 2 (2)–(4):

PRIMARY OBJECTIVE (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

DEALING WITH CASES JUSTLY (3) Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

DUTY TO PROMOTE PRIMARY OBJECTIVE (4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

[15] A finding of unreasonable litigation conduct does not mandate an award of full costs. The Ontario Court of Appeal has weighed in on this issue in two recent cases. In Beaver v. Hill, [2018] ONCA 840 it held at paras 8 – 12, 17:

8 … the resulting award approached a full recovery amount. In defence of that result, the respondent relies on what is contended to be the principle from Biant v. Sagoo, [2001] O.J. No. 3693, 20 R.F.L. (5th) 284 (S.C.J.) that costs in family proceedings should "generally approach full recovery". I would make a couple of points in response to that contention.

9 First, while the judge in Biant does make that statement, it is based on two decisions of other Superior Court judges, a close reading of which do not support the thrust of that statement. What those other cases do establish is that under the Family Law Rules, O. Reg. 114/99, judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules. Also, 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.

10 Second, the respondent's assertion that this court's decision in Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 supports the "full recovery" approach to costs in family matters also reflects a failure to read the decision closely. What this court endorsed in that case was the principle that "a successful party in a family law case is presumptively entitled to costs" (at para. 94) subject, though, to the factors set out in Rule 24. This caveat is an important one since, as this court pointed out in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, the Family Law Rules "embody a philosophy peculiar to a lawsuit that involves a family" (at para. 11).

11 There is no provision in the Family Law Rules that provides for a general approach of "close to full recovery" costs. Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs. …

12 As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

17 The motion judge also determined that it was appropriate to award the respondent 85% of her full recovery costs. The motion judge did not explain where she drew this percentage from or why it was appropriate to apply it in this case. On that point, I would note that employing 85% seems to simply be another way of utilizing a "close to full recovery" approach.

[16] On the facts in Mattina v. Mattina, 2018 ONCA 867, [2018], O.J. No. 5625, the Court of Appeal held that the successful party was entitled to partial indemnity costs between 60 to 70 percent of her costs of the appeal.

[17] My view is that the Respondent’s costs should be in the upper end of the range endorsed by the Court of Appeal in Mattina. The Applicant had some small amount of success but the Respondent was overall the successful party on the motion. The premature return date, withdrawal of significant substantive issues on the morning of the motion and the additional costs incurred by the Respondent in relation to those issues are significant factors.

[18] The Respondent’s costs are fixed at $17,500 inclusive of HST.

J. Mackinnon J. Released: May 30, 2019