COURT FILE NO.: FC-19-69
DATE: 2019/06/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: S.A., Applicant
-and-
M.L., Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Adrienne Curran, for the Applicant
David Sinclair, for the Respondent
HEARD: In Writing
costs ENDORSEMENT
[1] This endorsement determines the costs of the urgent motions heard on February 19, 2019 (for leave to bring the urgent motion) and February 26, 2019 (the urgent motion). This decision follows my decision on the urgent motion released on February 27, 2019 [S.A. v. M.L., 2019 ONSC 1390].
[2] Both parties have provided written submissions on costs.
Respondent’s Position
[3] The Respondent, M.L., seeks her costs fixed in the amount of $8,000, inclusive of tax and disbursements, representing approximately 72% of her total costs of $11,155.93. She submits that she was the successful party on the motions and that the Applicant’s conduct in bringing the urgent motion was not reasonable, including in failing to accept her proposal for supervised access as set out in her counsel’s letter dated January 23, 2019.
Applicant’s Position
[4] The Applicant, S.A., submits that no costs should be awarded due to the parties’ divided success on the motions. He submits that M.L.’s January 23, 2019 proposal for supervised access could not be accepted because, by letter dated February 1, 2019, M.L. imposed, as a precondition to any access, that a voluntary service agreement be executed with the Children’s Aid Society (“C.A.S.”).
[5] S.A. submits that he acted reasonably by making his own access proposal dated February 5, 2019, which provided for him to have two weekends of supervised access in February, pending the case conference scheduled for March 1, 2019.
Factors in Determining Costs
[6] 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)[^1].
[7] 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.
[8] 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[^2]. 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[^3].
[9] 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.
[10] 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.
[11] 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.
[12] Where the parties have divided success, Rule 24(6) provides that the court may apportion costs as appropriate.
Disposition
[13] I find that the parties had divided success on the motions.
[14] Neither party served a formal offer under Rule 18(4). Both exchanged correspondence that included access proposals, and which are relevant to the determination of costs pursuant to Rule 24(12) of the Family Law Rules. These offers are also helpful in assessing the relative success of the parties.
[15] It is apparent from the exchange of correspondence between the parties that the main hurdle in avoiding the urgent motion prior to the March 1, 2019 case conference was M.L.’s insistence that an executed voluntary service agreement be in place prior to any access. M.L. only dropped this requirement on the morning of the February 26, 2019 motion. This is confirmed in M.L.’s confirmation form. This form included that M.L. was seeking the voluntary service agreement as a precondition of access. The order made on February 27, 2019 did not include a requirement that a voluntary service agreement be in place prior to S.A. exercising access.
[16] The other significant issue between the parties was the duration/status of any temporary access arrangement. This is a significant difference between the parties, given the legal presumption in favour of maintaining the status quo and the higher test to vary interim access prior to trial. The order of February 27, 2019 provided for interim interim supervised access pending the completion of the CAS and police investigations.
[17] M.L.’s proposal of January 23, 2019 is not clear on the duration or status of her proposed access. It does not state that the supervised access she is offering is either without prejudice, interim interim, or is reviewable or variable after the case conference or on receipt of further information.
[18] S.A.’s proposal for access made on February 5, 2019 provided for access only until the case conference. This would have avoided the need for the urgent motion prior to the case conference, although it may have only resulted in a brief reprieve. S.A.’s proposed access did not address his access after the case conference, which was scheduled for March 1, 2019. The order made on February 27, 2019 provided for interim access pending the completion of the CAS and police investigations, which likely extended beyond the case conference on March 1, 2019.
[19] There is though, still value in S.A.’s proposal in that it would have allowed a case conference to take place prior to an interim access motion. The Family Law Rules are specifically structured to encourage and facilitate early resolution, narrowing of issues, and to craft a process to deal with the case justly, including ensuring a fair process, saving time and expense, dealing with a case in a way that is appropriate to its importance and complexity and giving appropriate court resources to the case[^4]. A case conference is an important step in allowing the court, the parties, and counsel to focus on these objectives. The requirement of a case conference has significant value to the just resolution of a court proceeding. S.A.’s access proposal, which would have avoided an urgent motion before the case conference, has value for this reason.
[20] I do not find S.A.’s conduct in having an urgent motion a few days before the case conference to be unreasonable, given the issue at stake (denial of access) and the steps involved in obtaining the urgent motion date.
[21] I do find, however, that on the whole, M.L. was more successful than S.A. and is entitled to an award of costs. At the motions, S.A. sought significantly greater access than he was awarded. He sought an equal time schedule for the children. The February 27, 2019 order provided him with ongoing alternate weekend supervised access, which largely mirrored the order sought by M.L. at the motion. And although S.A. did not oppose the requirement that his access be supervised (given the position of the CAS), he also did not address how this supervision would be accomplished if an equal timesharing arrangement was in place.
[22] For this reason, I find that M.L. is entitled to an award of costs. There are aspects of M.L.’s conduct, however, that reduce the amount of costs to which she is entitled. The first is her insistence on the voluntary service agreement as a precondition to even supervised access, and only dropping this requirement on the morning of the motion. The second is her failure to respond to S.A.’s proposal for supervised access, even if just for the month of February 2019, made in the February 5, 2019 letter.
[23] I also agree with S.A.’s concerns that M.L.’s total legal fees of $11,155 are somewhat disproportionate given the complexity of the matter. In comparison, S.A.’s total fees were approximately $5,000 (inclusive of tax and disbursements). As noted in the decision of February 27, 2019, however, M.L.’s material included significantly more detailed evidence that was relevant to the disposition of the motion. For this reason, I find that it was reasonable for M.L.’s fees to be higher than S.A.’s fees, although the sum of $11,155 is disproportional.
[24] For all of these reasons, I award M.L. costs of the motions on February 19 and 26, 2019, fixed at $2,000, inclusive of tax and disbursements. These costs are payable forthwith.
Justice Pam MacEachern
Date: June 4, 2019
COURT FILE NO.: FC-19-69
DATE: 2019/06/04
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: S.A., Applicant
-and-
M.L., Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Adrienne Curran, for the Applicant
David Sinclair, for the Respondent
COSTS ENDORSEMENT
Justice Pam MacEachern
Released: June 4, 2019
[^1]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867
[^2]: M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, at para. 40
[^3]: Berta v. Berta, 2015 ONCA 918 at para. 94
[^4]: See Rule 2(2), (3), (4) of the Family Law Rules