Court File and Parties
Court File No.: F1661/09-4 Date: September 20, 2019 Superior Court of Justice – Ontario Family Court
Re: M.H., applicant And: J.E., respondent
Before: Tobin J.
Counsel: Hamoody Hassan for the applicant Lawrence Blokker for the respondent
Heard: written submissions filed
Endorsement on costs
[1] This is a costs decision following a 13-day trial of a motion to change parenting and child support provisions of an order made by Templeton J. dated September 20, 2010 (original order).
[2] The trial dealt with many incidents of parenting responsibilities and the time the parties would have their two children in their respective care. Also put in issue was child support.
[3] On August 7, 2019, the court released Reasons for Judgment which provided that the joint custody with an 8-6 parenting schedule as provided in the original order was to continue. However, the time that their older child, who was 15 years of age, would spend with each parent was to be subject to her wishes. The mother’s request to have child support calculated on her current income, instead of the income imputed to her in the original order, was denied.
[4] The parties were invited to make written costs submissions.
Mother’s Position
[5] The mother requests costs in the amount of $35,343.30.
[6] She argues that she was more successful than was the father on the parenting issues.
[7] The father did not provide timely production of a number of documents he sought to have admitted in evidence at the trial. As well, he did not identify, in advance, those statements attributed to the children that he wanted to have admitted for the truth of what was said.
[8] The trial took more time than was necessary because father’s counsel was repetitive in his examinations, both direct and cross.
Father’s Position
[9] The father submits that both parties should bear their own costs. If costs are ordered against him, he requests that they be in the range of $5,000 to $10,000.
[10] This was a custody case where the nature of the issues evolved as professional evidence and third-party disclosures were obtained.
[11] He acted in good faith based upon the concerns raised in these reports and should not therefore be penalized financially for bringing these concerns forward.
[12] There was divided success on the specific terms that were sought by both parties.
[13] The court found that both parties acted unreasonably in relation to the children at various times while this case was ongoing.
[14] A substantial costs award will impair his financial ability to provide what he described as “a comfortable home, enriched environment and necessary extracurricular activities for the children.”
Legal Considerations
[15] Modern family cost rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants. A fourth purpose is provided for at r. 2(2): to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[16] Rule 24(12) sets out factors relevant to setting the amount of costs and specifically emphasizes “reasonableness and proportionality” in any costs award.
[17] Rule 24(1) creates a presumption of costs in favour of a successful party. This presumption applies equally to custody and access cases: Mattina, supra, at para. 12.
[18] Costs can be used to encourage efficient and orderly administration of cases.
[19] An award of costs is subject to the factors listed in r. 24(12).
[20] Rule 24(4) provides that a successful party who behaved unreasonably during a case may be deprived of all or part of that party’s costs.
[21] Rule 24(5) provides that if success in a step in a case is divided, the court may apportion costs as appropriate.
Application of Legal Considerations
[22] One method of determining success is to consider a party’s offer to settle.
[23] In this case neither party’s offer to settle approximated the relief that was ordered by this court.
[24] Success can also be assessed by considering the relief requested at the beginning of the trial in the form of the draft orders filed. In this case, the relief requested at the opening of trial by the mother more closely reflected that which was ultimately ordered by this court.
[25] In this case, there was divided success. However, divided success does not mean equal success. The court must consider the positions of the parties in determining both entitlement and quantum of costs.
[26] The mother wanted to maintain the joint custody and 8-6 parenting schedule. The father wanted custody granted to him, with the mother having access on alternate weekend and one overnight during the week. The mother was substantially more successful on this most important issue. This success was tempered by the court’s order that the time their older child spends with either parent will be subject to her wishes.
[27] There was some ambiguity in the original order relating to who could care for the children if one of the parents was not available during their scheduled time. The father wanted his parents or partner to have the children in their care during his parenting time if he had to be out of town because of his employment. The court’s order was more in accord with the request made by the mother. The children are to be in the mother’s care on weekdays while the father is out of town for employment and the children may spend the weekend with the paternal grandparents or the father’s partner if they wish. Again, the success achieved by the mother was tempered by the provision that the older child’s views as to where she wanted to reside during the week would be subject to her wishes.
[28] The mother was half-hearted in her support of the younger child’s attendance at hockey. She would allow the child to decide if he would go. The order provided that the father is allowed to choose one extracurricular activity for the child that requires his attendance during the time the child is otherwise in the care of the mother. The father will be allowed to take the child to this activity if the mother is not able to do so.
[29] During the trial, the father provided evidence about special expenses that he incurred and were not contributed to by the mother. He did not pursue this claim when making submissions at the end of the trial.
[30] The mother wanted the child support calculation to be based on her current income and not the income imputed to her in the original order. She was unsuccessful in this request.
[31] Overall, I find that the mother was more successful in achieving the relief she sought than was the father.
[32] In assessing the amount of costs, the court is required to consider r. 24(12), which provides as follows:
(12) In setting the amount of costs, the court shall consider,
(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.
[33] The issues were very important to the parties. These issues concerned who would be able to make decisions regarding the children and where they would reside.
[34] This trial was heard over 13 days. The court heard a number of witnesses, including the parties, family members, the older child’s counsellor and the Children’s Lawyer clinician, who prepared the s. 112 investigation and report. Police reports, school records, and Children’s Aid Society records were also filed.
[35] The evidence on behalf of the father and the cross-examinations conducted were lengthy. When asked about the relevancy of certain lines of questions, counsel for the father was, for the most part able to demonstrate relevancy and, when not, moved on. The father’s case was presented within the time estimated at the trial management conference. I do not find that counsel for the father unnecessarily caused excessive delay in the matter being heard.
[36] The parties did exchange offers to settle prior to the commencement of the trial. Their behaviour in doing so was reasonable.
[37] As detailed in the reasons for judgment, both parties engaged in unreasonable behaviour in certain instances in dealing with their children while this case was ongoing.
[38] I agree with counsel for the respondent that it was not reasonable for the father to rely on the documents that had not been previously provided to the other side. It was necessary to give the mother and her counsel brief periods to review these documents.
[39] The father does not dispute the hours or rate claimed by mother’s counsel. Counsel for the mother was called to the bar in 1985 and claims an hourly rate of $350. I agree with the father’s counsel that the time spent and rate charged by mother’s counsel is reasonable. The mother’s Bill of Costs calculated full indemnity at $77,556.87 all inclusive.
[40] The ability of a party to pay costs is another factor for the court to consider when determining the amount to be paid. This is a relevant consideration, especially if it touches the interests of children. A costs award should not jeopardize a parent’s duty and responsibility to care for their children. At the same time, the court must also consider that a lack of financial resources cannot be used as a shield to permit a party to litigate with impunity. In this case, the father’s income is four and a half times that of the mother’s. He earns approximately $93,000 per year. The mother had income imputed to her of $21,000. Her ODSP application is pending.
[41] Based on these considerations, I find that a fair, reasonable and proportionate amount of costs to be paid by the father to the mother is $20,000 inclusive of disbursements and applicable taxes.
“Justice Barry Tobin”
Justice Barry Tobin
Date: September 20, 2019