COURT FILE NO.: FC-14-130
DATE: 2019/09/17
SUPERIOR COURT OF JUSTICE – Family Court
RE: N.S., Applicant
AND
R.M., Respondent
BEFORE: The Honourable Madam Justice A. Doyle
COUNSEL: Christian Pilon, Counsel, for the Applicant
Rodney Cross, Counsel for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
[1] On July 18, 2019, I rendered a judgment which, among other things, granted sole custody to the Applicant mother, permitted her to move with the two children (7 and 5 years old) to Montreal and ordered the Respondent father to pay table amount of child support and retroactive lump sum spousal support.
[2] If the parties were unable to agree on the issue of costs, they were to provide written submissions.
[3] For the reasons set out below and after having considered the parties’ costs submissions, the offers to settle, the bill of costs and the Family Law Rules, O. Reg. 114/99 (FLR’s), the Court orders that the father pay the mother costs in the amount of $40,000.
Mother’s Position
[4] The mother submits that she was substantially successful in that:
She was awarded sole custody;
She was permitted to move to Montreal with the two children;
She is permitted to travel with the children to the United States without the written consent of the father;
The father was required to pay the monthly table amount of child support in the sum of $1947 plus a retroactive amount under s.7 special and extraordinary expense of $1737.27 for medical/dental expenses; and
The father was required to pay a retroactive lump sum spousal support in the amount of $10,000.00.
[5] She submits that the father acted unreasonably throughout the litigation as follows:
Commenced a Small Claims Court action against her and her lawyer;
Provided the school with a copy of Dr. Weinberger’s assessment without her knowledge or consent;
Does not acknowledge her at all during the access exchanges which is not in the children’s best interests; and
Told third parties that she has mental health issues.
[6] His litigious actions resulted in an Order by Justice Kershman which ordered that the father could not bring any further motions until he had first obtained leave from the Court.
[7] She also sent an offer to settle on September 11, 2017, (one month before the commencement of the trial) which she submits substantially mirrors the ultimate decision.
[8] The total fees and disbursements incurred by the mother from November 2013 to date are $212,856.13. She is requesting costs on a substantial indemnity in the amount of $170,284.90 or, in the alternative, costs on a partial indemnity basis in the amount of $127,713.67.
[9] In her reply costs submissions, she further submits that the father has shown bad faith by bringing a motion to the Court of Appeal requesting a stay of my decision pending appeal. This motion was ultimately dismissed. The appeal has not yet been heard.
Father’s Position
[10] The father submits that the mother acted in bad faith by lodging a complaint to the College of Psychologists for Ontario regarding the assessor, Dr. Weinberger, after the trial had already commenced, without notice to the father. She sought to file the Panel’s decision after the trial had ended. Both parties agreed to the admission of the Panel’s decision but argued what weight it should be given.
[11] The father now regrets not requesting the re-opening of the trial to obtain a second opinion, a critique or produce Dr. Weinberger for further questioning.
[12] He submits he acted reasonably in litigating this matter as he was asking the Court to accept the recommendations of Dr. Weinberger. It was not unreasonable for him to take this position and he would not have known about the panel’s decision and this court’s reference to the panel decision regarding some of the deficiencies in the assessment.
[13] He also submits that until the eve of the trial, the parties’ joint plan was that the children would reside in Orleans and that it was the tax advice received by the maternal grandmother regarding capital gains that prompted the mother to request the right to move to Montreal with the children.
[14] The father spent much of the litigation trying to regain access to avoid irreparable harm to the children and the court had previously found that the mother did not act in the children’s best interests by restricting access.
[15] The father paid his counsel the total amount of $102,784.38 while the mother claims $212,000. Paying the costs requested by the mother, would have a serious financial effect on the father’s ability to maintain a home for the children when they visit.
Legal Principles
[16] In Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625, the Court of Appeal for Ontario confirmed the purposes of costs: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under s. 2(2) of the FLRs.
[17] Subrule 24(1) of the FLRs creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs, Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), 2000 ONSC 22584, [2000] O.J. No. 330. To determine whether a party has been successful, the Court should take into account how the Order compares to any settlement offers that were made, Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (S.C.).
[18] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine, Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, at para. 66.
[19] Cost awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.
[20] Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141, [2004] O.J. No. 3351.
[21] As stated in Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, and Slongo v. Slongo, 2017 ONCA 687, when there is divided success the Court can make a contextual analysis to determine the importance of the issues that were litigated, and time and expenses spent on those issues.
[22] Justice Chappel in her decision of Thompson v. Drummond, 2018 ONSC 4762, 13 R.F.L. (8th) 92, carefully reviews various cases in dealing with costs. At para. 12, she stated:
[12] […] Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case. (Gomez-Pound v. Pound [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)
[23] To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer). Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 ; Rebiere v. Rebiere, 2015 ONSC 2129, [2015] W.D.F.L. 1635; Scipione v. Scipione, 2015 ONSC 5982 (SCJ).
[24] 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 is. See Boucher v. Public Accountants Council for the Province of Ontario 2004 CanLII 14579 (ON C.A.), (2004) 71 O.R. (3d) 291.
[25] One of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding: Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.) at para. 32, aff’d 2010 ONCA 326, 2010 O.N.C.A. 326 at para. 4.
Analysis
Who was successful?
[26] The FLRs provide that there is a presumption that the successful party is entitled to costs.
[27] To determine whether a party has been "successful" the Court must take into account what was ordered compared to any settlement offers that were made. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (OSC).
[28] Where there are a number of issues before the court, it can have regard to the dominant issue at trial in light of those offers to settle: Firth v. Allerton, [2013] O.J. No. 3992 (S.C.J.); Mondino v. Mondino, 2014 ONSC 1102.
[29] For the reasons that follow, I find that the mother was successful on the major issues of sole custody and the move to Montreal.
[30] Her offer to settle requested $30,000 as a reimbursement for her contribution to the parties’ business whereas the Court dismissed this claim. Trial time was taken up on this issue.
[31] On the other issues, the mother was prepared to waive her right to retroactive spousal support, whereas the Court ordered the father to pay her a $10,000 lump sum amount. Trial time was taken up with respect to this issue.
[32] Trial time was taken up with her claim for retroactive special and extraordinary expenses, and the Court dismissed this claim for a number of reasons, including the fact that she had just produced the receipts during the trial and she had not requested at any time prior to the trial that he contribute to these expenses. Considerable trial time was taken dealing with the evidence of volumes of receipts for children’s activities and other expenses.
[33] She was not successful on the reimbursement of the business expenses which also took up considerable time at trial.
[34] Furthermore, unlike her offer to settle dated September 11, 2017, the final judgment granted the father regular overnight access and a right to be consulted and participate in the decision making. The father was successful in obtaining overnight visits during the holiday period.
[35] The Court made its determination on custody based on its findings from the evidence led at trial and did not accept Dr. Weinberger’s recommendation for joint custody due to some of its shortcomings. (para. 208). Most notably, the Court specifically also found that Dr. Weinberger did not fully explore the mother’s proposed move to Montreal (para. 230).
Quantum of costs
[36] Rule 24(12) of the FLR’s states:
(a) In setting the amount of costs, the court shall consider, 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.
[37] Pursuant to r. 24(12) of the FLRs, the Court considers the following:
Importance, complexity or difficulty of the case:
[38] There were a number of issues including the complexity of the parties’ business and the very important issue of custody/access and mobility issue of the two children.
Reasonableness of each party’s behavior:
[39] The Court finds the timing of the College of Psychologists’ Panel decision did impact on the process. However, the Court does not find that the mother acted in bad faith in pursuing her complaints especially given that the Panel found a number of shortcomings in Dr. Weinberger’s procedures.
[40] The conduct of the mother during the litigation in denying access after reporting matters to the police, Children’s Aid Society or other third parties caused the father to lose time with his children.
[41] The father also conducted himself unreasonably as found in the decision, including but not limited to:
Lodging complaints about her lawyer to the Law Society; and
Not prepared to acknowledge her during access exchanges.
The lawyers’ rates and the time spent on the motion, in light of the various issues and case law were reasonable:
[42] To trigger full recovery costs a party must do as well or better than all the terms of any offer. I note that she was largely unsuccessful on the major financial issues of retroactive spousal support, a reimbursement with respect to the parties’ business and retroactive s. 7 special and extraordinary costs.
[43] The rate of $295.00 per hour for the mother’s lawyer is reasonable given his call to the Bar in 2002 and his experience in family law matters.
[44] The mother is not entitled now to claim costs for any step along the way for which costs could have been claimed and awarded at the time. These would include conferences, motions and consent orders. See r. 24(10) of the FLRs; Islam v. Rahman, 2007 ONCA 622, 228 O.A.C. 371.
[45] Although the mother was not completely successful on all the issues, the major issue of the trial dealt with the children’s parenting and hence there should be a level of costs to reflect that a considerable amount of the 20-day trial was spent on this issue.
Other relevant factors:
[46] Mobility cases do attract other factors. As stated in Bridgeman v. Balfour, 2009 CarswellOnt 7214 (Ont. S.C.J.) when a moving party is successful on a mobility case but has put the other party in the position of having little option but to contest the case, the court should be reluctant to grant costs. However, where the move was from one town to another within Niagara and the parent’s relationship with his child would not be affected at all, Bridgeman was distinguished. See: DeLuca v. DeLuca, 2010 ONSC 6692.
[47] Mobility cases are challenging for everyone involved. By their very nature, an approved move will usually compromise a parent’s relationship with his or her child. For this reason such cases are difficult to resolve and often need to be decided by the court. It is understandable for parents to contest such requests. See: Kawamata v. Phan, 2015 ONCJ 96.
[48] Certainly this line of cases recognizes the all or nothing character of mobility cases and the challenges in resolving an issue which would result in children moving to another jurisdiction. The cases seem to distinguish those who move further afield from those where the parent’s relationship with the children would not be overly compromised.
[49] The father had an assessment in his favour and was fighting for his children to remain in the area that the parents had previously identified as their home in Orleans.
[50] I do not find that the father acted in bad faith in launching a motion for a stay of my decision pending an appeal. This is part of the litigation process and an order for costs was made against him by the Court of Appeal for Ontario for his lack of success on the stay motion.
[51] Here costs at each step of the way was not dealt with as per the previously discussed FLRs.
[52] I have reviewed the endorsements for all previous proceedings and costs were reserved to the Trial Judge for the appearance before me on June 27, 2018 to deal with summer access. Both parties had proposed polar positions regarding the father’s summer access with the children. Having reviewed the record and the mixed success of that short appearance before me, I order no costs for that appearance.
[53] The trial was originally scheduled to proceed on May 24, 2018 but was adjourned due to the mother’s medical issues. The parties agreed that costs would be fixed at $1200 for the day “to be determined in the cause”. This adjournment caused a delay of 6 months as the trial commenced in October 2017. Since there has been divided success in this matter, the Court declines to order costs against either party for this attendance.
[54] Therefore, I have reviewed the amount of time spent at the trial, the divided success of the parties, the respective offers to settle and I find that a fair and reasonable amount of costs payable by the father to the mother is $40,000.00.
Justice A. Doyle
Date: September 17, 2019
COURT FILE NO.: FC-14-130
DATE: 2019/09/17
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: N.S., Applicant
AND
R.M., Respondent
BEFORE: Justice A. Doyle
COUNSEL: Christian Pilon, Counsel, for the Applicant
Rodney Cross, Counsel for the Respondent
COSTS ENDORSEMENT
The Honourable Madam Justice A. Doyle
Released: September 17, 2019