Court File and Parties
COURT FILE NO.: FC-11-1816-2
DATE: 2019/08/20
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Gregory Thomas Glenn Drover, Applicant
AND
Marnie Drover (nee Tyerman), Respondent
BEFORE: D. Summers J.
COUNSEL: Susan Galarneau, for the Applicant
Steve Duplain, for the Respondent
Cheryl Hess, for the Office of the Children’s Lawyer
HEARD: In Writing
Costs ENDORSEMENT
Introduction
[1] This costs endorsement arises out of Mr. Drover’s motion to change the final order of Justice Toscano Roccamo. The primary relief sought was supervised access based on the provision in the final order that gave him leave to seek supervised access in the event that Ms. Tyerman-Drover committed further acts of contempt. He sought a finding of contempt only. He did not seek to impose a penalty. He also argued a material change in circumstance. In addition, Mr. Drover sought an order removing the right of first refusal to care for the children when either party is unavailable, an order eliminating holiday access unless supervised, and an order allowing him to travel without Ms. Tyerman-Drover’s consent.
[2] Ms. Tyerman-Drover asked that the motion to change be dismissed. In the alternative and in the event the court found a material change, she asked for increased access time with the children.
[3] My decision on the motion to change can be found at 2019 ONSC 1879.
[4] Mr. Drover argues that, on the whole, he was the successful party and seeks costs of $20,000 on a total account of $23,536. He also asks that any award be enforceable by the Family Responsibility Office as support. Ms. Tyerman-Drover argues that success was divided and no costs should be ordered.
The Outcome on the Motion to Change
[5] I found that a material change in circumstance had occurred since the final order. The impact on the children of Ms. Tyerman-Drover’s persistently destructive conduct and the children’s views and preferences met the threshold test. I also found Ms. Tyerman-Drover to be in contempt. I ordered a significant reduction in access but did not order supervised access. I also dispensed with the need for Ms. Tyerman-Drover’s written consent to travel.
Was the Applicant Partially Successful or was Success Divided
[6] Mr. Drover succeeded on some but not all issues. He satisfied the material change in circumstances test and met the threshold test of contempt as established in the final order that he sought to vary. He obtained a significant reduction in access and obtained an order permitting him to travel without need of Ms. Tyerman-Drover’s consent but did not succeed on the key issue of supervised access.
[7] Ms. Tyerman-Drover asked that the motion be dismissed or that her access be increased. She did not obtain either order and, therefore, had no success. Nevertheless, she argues that success was divided because she successfully defending against supervised access. I do not agree. Mr. Drover’s lack of success on an issue does not translate into success on her part.
[8] Mr. Drover enjoyed partial success. He is entitled to some costs.
Factors to Consider When Deciding the Amount of Costs
(i) Offers to Settle
[9] Neither party made an offer to settle. That is unfortunate. The views and preferences of the children did not align with the relief sought by either party. Considering the requirement that the court must consider the children’s wishes where they are reasonably ascertainable, the age of the children and the consistency in their evidence, there was reason and room for compromise. Neither party acted on that opportunity to possibly resolve the case.
(ii) Time Spent and Fees Charged
[10] The time spent by both counsel was very similar and altogether reasonable given the importance of the issues, the volume of material filed and the length of the hearing. The hourly rates charged by Mr. Drover’s counsel were reasonable given her years of experience as were the rates charged by Ms. Tyerman-Drover’s counsel. Here, I note that Mr. Drover’s counsel considered his financial circumstances and charged him at a reduced hourly rate although the extent of the reduction was not stated. With that accommodation, I infer a smaller difference between each counsel’s hourly rate than might otherwise have been the case in relation to their respective years of experience. The reduced hourly rate charged is reflected in the costs sought from Ms. Tyerman-Drover.
[11] In relation to Ms. Tyerman-Drover’s ability to pay - a factor to be taken into account - the court is also asked to consider Mr. Drover’s decision to hire a senior lawyer knowing that she was of limited means. I do not accept that argument. A litigant is entitled to counsel of their choosing. Moreover, my focus here is ultimately on the reasonableness and proportionality of the fees charged as opposed to the particular hourly rate that I already found to be reasonable.
(iii) Did Ms. Tyerman-Drover’s Behaviour Unreasonably Increase Fees
[12] Mr. Drover submits that Ms. Tyerman-Drover’s behaviour increased the cost of the litigation. He points to her non-compliance with the final order, what he says was her unreasonable position in the litigation, and her request to reopen the litigation on two occasions. Ms. Tyerman-Drover says both parties took unreasonable positions in relation to the outcome and points to the fact the she made two requests to re-open the litigation whereas Mr. Drover made one. She also says he made multiple allegations of contempt whereas only one finding was made.
[13] The impact of Ms. Tyerman-Drover’s behaviour on the children and her lack of compliance with the final order is, in large measure, what gave rise to this proceeding. However, the behaviour to be considered in relation to costs is the litigant’s behaviour in the case and not the behaviour giving rise to the case. To the extent that there were requests to re-open this matter, Mr. Drover made the first request and very quickly dropped it. Ms. Tyerman-Drover waited longer to withdraw her first request but did not wait long to drop her second. To the extent that these requests contributed to delay, it was delay in the decision. I was not provided with any evidence that the requests to re-open contributed to increased costs in any significant way.
[14] Ms. Tyerman-Drover says that her position should not be considered more unreasonable than Mr. Drover’s position. She also argues that only one finding of contempt was made. That is true, however, my reasons state that having made one finding of contempt in relation to the test established in the final order and considering that no penalty was sought, I did not need to address the other allegations. I find that while the position of both parties may have been ill-advised in light of the evidence, I do not find that it rose to the level of unreasonable in either case.
(iv) Respondent’s Limited Ability to Pay
[15] Ms. Tyerman-Drover’s income was $10,437 in 2018. Her income in 2019 is largely unchanged. She is also significantly in arrears of her child support obligation. This leaves Mr. Drover responsible for all of the children’s costs. His income is not large. He says she is quite capable of working but chooses not to. He argues that considering her ability to pay in relation to costs undermines the responsibility she must take for her choices. It is well settled law that ability to pay is a factor to be considered in assessing the amount of costs and I do so here. I also consider that Mr. Drover can ill afford this litigation.
Is This a Case for Full Recovery Costs
[16] Mr. Drover seeks to recover $20,000 which is approximately 85% of his total costs. This is in the range of full recovery. See Beaver v. Hill, 2018 ONCA 840. On the facts of this case, an amount bordering on full recovery is not warranted. Success was partial and none of the rules providing for full recovery apply. See for example Family Law Rules, O.Reg 114/99, r. 18(14) and r. 24(8). The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 indicates that partial recovery costs are in the range of 60% to 70% of the total bill of costs.
My Award
[17] I also consider that modern costs rules foster four fundamental purposes: to partially indemnify successful litigants; to encourage settlement; to discourage and sanction inappropriate behaviour; and to ensure that cases are dealt with justly. See Mattina v. Mattina and r. 2(2) of the Family Law Rules.
[18] In addition to my reasons above and considering that a cost award is to be reasonable and proportionate, I apply the range of 60% to 70% but make a modest reduction to take into account Ms. Tyerman-Drover’s means. An award of $12,000 meets these goals. As this is not a support case, costs are not enforceable by the Family Responsibility Office.
D. Summers J.
Date: August 20, 2019
COURT FILE NO.: FC-11-1816-2
DATE: 2019/08/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Gregory Thomas Glenn Drover, Applicant
AND
Marnie Drover (nee Tyerman), Respondent
BEFORE: D. Summers J.
COUNSEL: Susan Galarneau, for the Applicant
Steve Duplain, for the Respondent
Cheryl Hess, Office of the Children’s Lawyer
Costs ENDORSEMENT
D. Summers J.
Released: August 20, 2019