COURT FILE NO.: FC-18-FS000227-00AP
DATE: 2019/08/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Trina Robinson Applicant/Respondent on Appeal
– and –
Matthew Delorme Respondent/Appellant
Duncan A. R. Crosby, Counsel for the Applicant/Respondent
John Allan, Counsel for the Respondent/Appellant
HEARD: In Writing
DECISION ON COSTS
Justice Engelking
[1] On June 28, 2019, I released Reasons for Decision on an Appeal to the Superior Court from the Ontario Court of Justice. At that time, I invited submissions on costs in the event that the parties could not agree on same. I received written submissions from the Applicant/Respondent on Appeal dated July 18, 2019, and submissions from the Respondent/Appellant dated July 27, 2019. This is my decision on costs of the Appeal.
[2] Having considered the parties’ submissions, the bills of costs and the Family Law Rules[^1], the court awards the Applicant/Respondent costs in the amount of $1,280.00 inclusive of HST and disbursements, payable within 30 days.
Background Facts
[3] In August of 2016, Ms. Robinson commenced a Motion to Change the Final Order of Justice Selkirk dated October 28, 2015, which was a final order placing the parties’ child, N. R. A. D., born November 12, 2010, in the custody of Mr. Delorme with reasonable access on notice to Ms. Robinson pursuant to s. 57.1 of the Child and Family Services Act.[^2] Ms. Robinson was seeking an order for increased and specified access to N. R. A. D. in her Motion to Change.
[4] At some point within a few months of Ms. Robinson’s initial pleadings, Mr. Delorme did file a Response to Motion to Change or Answer. In September of 2017, Ms. Robinson served Mr. Delorme with an Amended Motion to Change, in which she was seeking custody of N. R. A. D. Mr. Delorme never filed an Amended Response to Motion to Change.
[5] On October 18, 2018, Mr. Justice March granted an Order striking the pleadings of Mr. Delorme, and removed the matter from the then scheduled trial list. Mr. Delorme appealed the decision of Justice March to the Superior Court of Justice.
[6] On June 28, 2019, my decision on the Appeal was released, in which I ordered that the matter be reinstated to the next available trial list, and that, although Mr. Delorme’s pleadings remained struck, he would have limited rights of participation in the trial on the issues of custody and access.
Position of the Parties
[7] In paragraph 33 of my decision, I indicated that Ms. Robinson was “substantially successful on this Appeal in that Mr. Delorme’s pleadings remain struck, and she is consequently entitled to an award of costs.” Ms. Robinson now seeks an award of costs of $3,840.43 on a full indemnity basis. She submits that Rule 18(14) of the Family Law Rules applies in that she made an offer to settle to Mr. Delorme by email correspondence from her counsel to his dated June 13, 2019, in which she was prepared to consent to the matter being relisted for trial on the basis that Mr. Delorme would present no evidence and be able only to cross-examine her. This is, of course, essentially the outcome of the Appeal.
[8] Mr. Delorme takes issue with Ms. Robinson’s request for a cost order. First, he argues that she was late in providing her submissions, as she was supposed to do so within 15 days of my decision, and she only did so within 20. Mr. Delorme submits further that Ms. Robinson’s delay in perfecting the Appeal was unreasonable, and she should not be rewarded for her tardiness in respect of either. Finally, Mr. Delorme submits that he was partially successful in his Appeal in that Ms. Robinson sought an order dismissing it, which was not granted.
Analysis
[9] The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants.”[^3] Under Rule 24(11) of the Family Law Rules prior to July 1, 2018, the court was to consider a number of factors, including the importance, complexity or difficulty of the issues, the reasonableness or unreasonableness of the parties’ behaviour, the lawyers rates, the time properly spent on the case and expenses properly paid. The new Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award.[^4] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses.[^5] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.[^6] Rule 18(16) provides that when exercising its discretion over costs, the court may take into account any written offer to settle, the date at which it was made and its terms, even if Subrule (14) does not apply.
[10] Ms. Robinson did not make a formal offer to settle such that Rule 18(14) of the Family Law Rules would apply. She did, however, make a written offer that the court can take into account pursuant to Rule 18(14). The outcome of the proceeding was as favourable to her as the written offer she made on June 13, 2019.
[11] Mr. Delorme, however, was partially successful, in that he is permitted to participate, in a prescribed manner, in a trial regarding the issues of custody and access.
[12] Mr. Delorme is ordered to forthwith pay costs to Ms. Robinson on a partial indemnity basis in the amount of $1,280.00.
Engelking, J.
Released: August 14, 2019
COURT FILE NO.: FC-18-FS000227-00AP
DATE: 2019/08/14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Trina Robinson Applicant/Respondent on Appeal
– and –
Matthew Delorme Respondent/Appellant
DECISION ON COSTS
Engelking, J.
Released: August 14, 2019
[^1]: O. Reg. 114/99, as am. [^2]: R.S.O. 1990, c. C. 11 (repealed April 30, 2018) [^3]: Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [^4]: Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [^5]: Ibid. [^6]: A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.