Court File and Parties
Court File No.: 532/17 (St. Catharines) Date: 20190628 Superior Court of Justice – Family Court – Ontario
Re: Keith Bradley Stouffer, Applicant And: Elizabeth Victoria Stouffer, Respondent
Before: The Honourable Mr. Justice R. A. Lococo
Counsel: Nathalie G. Fortier, for the Applicant Richard G. Startek, for the Respondent
Heard: By written submissions dated May 28 to June 3, 2019
Corrected Decision: The neutral citation number has been changed to 4119 on July 5, 2019. No change to the content has been made.
Endorsement – Costs
I. Introduction
[1] Keith Bradley Stouffer and Elizabeth Victoria Stouffer (known as Victoria) are parties to a family law application that Keith commenced in August 2017, following the parties’ separation earlier that year. During the four-day trial of the application, the principal issues related to the parenting schedule for their 5-year old son Myles and the location of Myles’ school.
[2] As set out in Reasons for Judgment dated May 15, 2019 (reported at 2019 ONSC 2909), I made a final order, which (i) permits Victoria to register Miles at a school near her new residence in September 2019 and (ii) imposes a shared parenting regime that adopts some elements proposed by both parties in their respective draft orders. With some variations, that timesharing regime is based on an alternative schedule that Victoria proposed. The final order also addressed outstanding issues relating to choice of family physician, child support and section 7 expenses. Costs were left to be determined based on written submissions.
II. Position of the parties
[3] In her costs submissions, Victoria submits that as the successful party to the proceedings, she should be awarded her costs. In support of her submission that she is the successful party, she compares the position that the parties took on each major issue with the outcome achieved. She also relies on severable offers to settle dated July 10, 2018 and November 9, 2018, the terms of which she argued were more favourable to Keith than were provided in the final order, particularly on the issue of parenting timeshare.
[4] Victoria’s costs submissions also included a bill of costs, calculating costs throughout (including disbursements and tax) at $52,376.
[5] In his costs submissions, Keith submits that each party should bear their own costs, based on the parties’ mixed success. He concedes that the final order adopted Victoria’s position relating to choice of family physician, child support and section 7 expenses but argued that little trial time was spent on these issues. On the issue of timesharing, Keith notes in particular that the final order (i) adopts elements of both parties’ proposed schedules, and (ii) provides Keith with more parenting time with Myles than either of Victoria’s proposed timesharing schedules. With respect to the location of Myles’ school, he notes that Victoria’s position was that Myles should change schools immediately (even though it was close to the end of the school year); the final order did not permit the change until September 2019. In Keith’s final offer to settle prior to trial, he would have agreed to the school change effective September 2019, consistent with the outcome in the final order.
[6] Keith also included a bill of costs with his submissions, which set out total charges that are in the same range as the bill of costs that Victoria provided.
III. Successful party
[7] In court proceedings, determination of costs is in the court’s discretion: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131. For family law proceedings, r. 24(1) of the Family Law Rules, O. Reg. 114/99, creates a presumption of costs in favour of the successful party. However, a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s costs or ordered to pay the costs of the unsuccessful party: rr. 24(4) and (5). As well, if success is divided, the court may apportion costs as appropriate: r. 24(6).
[8] Consistent with r. 24(1), consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para. 1. To determine whether a party has been successful, it is appropriate for the court to consider the position each party took at trial. The court should also take into account how the trial outcome compares to any settlement offers that were made: Lawson v. Lawson, [2008] O.J. No. 1978 (Sup. Ct.), at para. 7.
[9] Having considered the parties’ submissions, I agree with Victoria that a costs award should be made in her favour, based on her substantial success on the key trial issues. Under r. 24(1), Victoria is presumptively entitled to costs. To the extent that her success is less than complete, that consideration can be reflected in the quantum of costs awarded (relying on r. 24(6)), rather than by denying her a costs award. As well, I see no justification for denying her costs (or ordering her to pay Keith’s costs) pursuant to r. 24(4).
[10] The parenting schedule for the school year set out in the final order largely adopts the alternative schedule that Victoria proposed, that is, that Myles be in his father care three out of four weekends a month, and with Victoria the rest of the time. While Myles will spend more parenting time with his father under the final order than under Victoria’s proposal (in general, two additional Thursday evenings each month), the timeshare provided in the final order is much closer to Victoria’s alternate schedule that to Keith’s proposal. For summer timesharing, the final order adopts Victoria’s equal timesharing schedule in preference to Keith’s proposed four/three weekly split in his favour.
[11] The final order also permits Victoria to register Myles at the elementary school near her new home in Smithville as of September 2019. The location of Myles’ school was a matter of significant contention between the parties at trial. Keith took the untenable position that Myles should continue to attend school in St. Catharines, even though Victoria was moving to Smithville (from Beamsville) and Keith lived in Brantford. I consider Victoria to have been substantially successful on this issue, even though she requested that the order permit her to change Myles’ school immediately. In reaching that conclusion, I also considered the fact under Keith’s final offer, he would have agreed to Myles’ changing schools as of September 2019, as provided in the final order. However, in general terms, the balance of the terms of Keith’s offer, taken as a whole, were less favourable for Victoria than the terms of the final order, most notably on the issue of timesharing. As noted in Victoria’s submissions, it was not open to her to accept the term relating to change of schools in isolation, since the terms of Keith’s offer to settle were not severable.
IV. Quantum of costs
[12] Having concluded that Victoria is entitled to her costs, the next issue to consider is the quantum of costs that should be awarded.
[13] In Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, the Court of Appeal indicates that as a general rule in family law proceedings, “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”. That principle is reflected in para. 24(12)(a) of the Family Law Rules, which directs the court when fixing costs to consider the “reasonableness and proportionality” of a number of listed factors as they relate to “the importance and complexity of the issues”. Those factors include (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, (iv) legal fees, including the number of lawyers and their rates, and (v) any proper expenses, including expert witness fees.
[14] When fixing costs, r. 18(14) provides additional direction that applies where a party who makes an offer to settle obtains an order that meets the requirements set out in that subrule. One of those requirements is that the party who makes the offer obtains an order that is “as favourable as or more favourable than the offer.” If the requirements of r. 18(14) are met, the qualifying party is “entitled to costs to the date of the offer and full recovery costs from that date.” As well, under r. 18(16), when exercising its discretion over costs, the court may take into account any written offer to settle even if r. 18(14) does not apply.
[15] In Victoria’s costs submissions, she relies on Keith’s failure to accept offers to settle on reasonable terms as supporting her position that she should be awarded costs. However, she makes no specific reference to r. 18(14) as providing the basis for a claim for full recovery costs. In that regard, I note that Victoria’s offers to settle dated July 10, 2018 and November 8, 2018 did not address the issue of the location of Myles’ school (which did not become a live issue until shortly before the trial). In those circumstances, given the focus of attention on that issue during the trial, I do not consider r. 18(14) to apply in this case. In any event, this point appears to be academic, since the charges set out in Victoria’s bill of costs appear to be more consistent with partial indemnity costs, rather than a higher costs scale.
[16] In any case, as the Court of Appeal noted in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26, when fixing costs, the calculation of hours and time rates is only one factor to be taken into account. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” While Boucher is a non-family civil case, the court’s overall objective in Boucher is consistent with the principles set out in the Family Law Rules (as interpreted by the Court of Appeal in Beaver), which emphasize the “touchstone considerations” of reasonableness and proportionality when fixing the amount of costs.
[17] Taking into account the above considerations, I would fix Victoria’s costs at $35,000, payable by Keith within 60 days.