SIMCOE COURT FILE NO.: 6701/18
DATE: September 9, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Paul Labine, Applicant
AND:
Sarah Labine, Respondent
BEFORE: Madam Justice M. Kril
COUNSEL: Gloria Antwi, Counsel for the Applicant
Justine Lyons, Counsel for the Respondent
The Honourable Madam Justice M. Kril
COSTS ENDORSEMENT
[1] This was the Respondent mother’s motion for a temporary order allowing her to change the children’s primary residence from Waterdown to Toronto. I dismissed the motion following argument and released Reasons for Decision on July 9, 2019. At that time, I invited written submissions with respect to costs in the event that the parties were unable to agree on same. They were not.
[2] The Applicant father seeks a costs order on a full recovery basis in the amount of $68,490.51. The Respondent mother requests that the court exercise its discretion to order that no costs are payable.
[3] The Courts of Justice Act, R.S.O. 1990, c. C-43, as amended provides that costs are in the discretion of the court, subject to the provisions of an Act or rules of the court. The Family Law Rules, O. Reg. 114/99, as amended provide guidelines and principles for the exercise of the court’s discretion.
[4] Rule 24(1) of the Family Law Rules creates a costs presumption in favour of the successful party. The Respondent mother’s motion was dismissed and as such, she concedes that the Applicant father was the successful party. As such, it follows that costs should presumptively be ordered in his favour.
[5] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 identified three fundamental purposes for costs orders as partially indemnifying successful litigants for the costs of litigation, encouraging settlement and discouraging inappropriate behaviour.
[6] The issue here is with the amount of costs sought by the Applicant father. Rule 24(12) of the Family Law Rules sets out factors to be considered when setting the amount of costs as:
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 requirement 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.
[7] I did not find that the behaviour of either party served to prolong or increase the costs of the litigation. The delays in having the motion heard were the result of the appointment of the Children’s Lawyer and scheduling issues between counsel.
[8] The Applicant father’s Bill of Costs submitted in support includes all of his legal fees and expenses dating from the commencement of the application. It is not limited to the within motion. The Bill of Costs includes legal work performed prior to the Respondent mother’s motion even being brought. The Applicant father submits that this is appropriate as all such activity was related to the mother’s motion. I disagree.
[9] Although Rule 24(10) provides that the court shall determine costs in a summary manner following each step, Rule 24(11) does not preclude the court from awarding such costs at a later stage in the case. This is not the appropriate time for all costs from the time of commencement of the application to be determined. Work performed prior to the bringing of the motion was related to issues arising from the parties’ separation. Those issues will ultimately be resolved at trial when the Applicant father’s claim for costs from the commencement of the application can properly be considered in light of their final disposition. Although I did not grant the relief sought by the Respondent mother on the motion, she may ultimately be successful at trial.
[10] The Applicant father delivered an offer to settle which complies with Rule 18. His offer proposed maintaining the status quo. The Respondent mother’s motion sought to alter the status quo. She did not deliver an offer.
[11] This motion had been characterized and referred to by counsel and in prior endorsements as a “mobility” motion. The father had obtained an order shortly after separation providing that the children remain primarily resident with him in the matrimonial home in Waterdown. The mother alleged that her continued cohabitation in the matrimonial home was not possible and sought an order that the children move to Toronto to live with her. It is fair to say that a reasonable compromise position was not self evident. The Respondent mother had some reasonable basis upon which to believe that she was acting in the children’s best interest as did the Applicant father. In a case such as this, a substantial costs order would not serve to encourage settlement.
[12] Although the Respondent mother’s motion was initiated in August of 2018 it was not argued until nearly one year later. It appears that much of the delay was out of the Respondent mother’s control. By the time the motion was argued, the parties were much closer to trial, a long-standing status quo was in place and a possibly temporary disturbance of that status quo much less likely. The relief claimed by the mother was not unreasonable when the motion was brought but the delays in the litigation meant that the timing did not favour her by the time it was argued.
[13] In support of his claim for costs on a full recovery basis, the Applicant father submitted that the Respondent mother was guilty of unreasonable conduct and bad faith. He submits that her conduct attracts the application of Rule 24(8) of the Family Law Rules.
[14] The Applicant father submits that the Respondent mother intentionally misled the court with respect to the nature of her relationship with Mr. Hayee at various relevant times. This has not been established on the evidence and no findings to this effect have been made in this matter. This remains an issue for trial. As such, the Applicant father has failed to establish that the Respondent mother’s actions were of the fairly high threshold of egregious behaviour contemplated by the Rule (see Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. S.C.).
[15] The Applicant father also maintains that the Respondent mother’s behaviour in the litigation was unreasonable in that she initially removed the children from the matrimonial home without the Applicant’s consent and that she has failed to pay child support. Neither of these issues were the subject of the motion argued before me and as discussed above, costs submissions with respect to these issues may be made to the court following trial.
[16] Although unsuccessful in her motion, the Respondent mother’s conduct in bringing the motion before the court was not unreasonable.
[17] An award of costs is within the court’s discretion and should reflect a fair and reasonable amount to be paid by the unsuccessful party. The court must step back and exercise a judgment, having regard to all the circumstances as to what a fair and reasonable amount should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant. See Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON C.A.). Cited with approval in Serra v. Serra, 2009 ONCA 395.
[18] This motion took less than one half day in argument, including submissions from the Office of the Children’s Lawyer. The issue was not legally complex. However, as it concerned their children, it was admittedly of significant importance to the parties themselves. Nonetheless there must be some proportionality to costs awards in order that they not impact parties’ access to justice. This is particularly the case when parties are of modest means and the issues before the court involve children.
[19] Each party argued their position based on what they believed to be their children’s best interest. The Applicant father was successful in maintaining what had, by the time the motion was argued, become a long-standing status quo. He is presumptively entitled to a fair and reasonable costs award which I find to be $6,500 inclusive, payable by the Respondent mother in installments of $500 per month commencing October 1, 2019. In the event that the Respondent mother is more than five days late with an installment payment, the full amount of the balance owing shall immediately become due and payable.
M. Kril J
Date: September 9, 2019
SIMCOE COURT FILE NO.: 6701/18
DATE: September 9, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Paul Labine
Applicant
- and –
Sarah Labine
Respondent
COSTS ENDORSEMENT
M. Kril J.
Released: September 9, 2019