Blair v. Hamilton, 2019 ONSC 622

COURT FILE NO.: FC-17-1366-1

DATE: 2019/01/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Craig Blair, Applicant

-and-

Janna Hamilton, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Alison Campbell for the Applicant

Respondent, Self-Represented

HEARD: In Writing

ENDORSEMENT

1This is my decision on costs following the urgent motion heard on November 27, 2018.

Positions of the Parties

2The Applicant, Mr. Blair, asks for an order requiring the Respondent, Ms. Hamilton, to pay his costs of the motion for leave to bring the urgent motion, and the urgent motion itself, on a full indemnity basis in the amount of $9,154.48. Mr. Blair argues that he was the successful party throughout, that his costs are reasonable and proportional, and that full indemnity costs are warranted due to Ms. Hamilton’s unreasonable conduct. Mr. Blair states that Ms. Hamilton acted unreasonably by refusing to abide by the terms of the Separation Agreement dated May 4, 2017, refusing to abide by the two Arbitration Awards, unilaterally changing the parenting schedule, and failing to provide her responding material until the morning of the motion.

3Ms. Hamilton’s position is that she should not be ordered to pay Mr. Blair’s costs of the motions, but that he should bear these costs himself. Ms. Hamilton also seeks an order requiring Mr. Blair to reimburse her for expenses she incurred for the motion, which are outlined in her submissions as being:

a. $1,600 for legal fees;

b. $8,000 for lost vacation time;

c. $3,000 in therapist costs due to Mr. Blair’s unreasonable court action; and

d. Any future costs related to the emergency court motion.

4Ms. Hamilton has not provided receipts for her costs or a bill of costs. She states that she will submit receipts by no later than February 28, 2019 and that she can also submit receipts for costs at the next court conference.

5My endorsement of December 6, 2018 stipulated that Ms. Hamilton’s cost submissions were required to be filed on or before December 21, 2018. Accordingly, I will determined the issue of costs based on the submissions before me. Given my reasons, set out below, if Ms. Hamilton had provided receipts this would not change my disposition.

6Ms. Hamilton argues that she is entitled to her costs due to Mr. Blair’s unreasonable conduct. In her cost submissions, Ms. Hamilton states that the children want to change the parenting schedule, and takes issue with Mr. Blair initiating a court process when the matter was being dealt with by their Parenting Coordinator in an arbitration process. Ms. Hamilton describes Mr. Blair’s conduct as aggressive and bullying.

Legal Principles

7The Ontario Court of Appeal in Mattina v. Mattina¹ recently confirmed that the modern cost rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly².

8Rule 24(12) of the Family Law Rules³ sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.

9There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs⁴. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party⁵ .

10Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

“(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.”

11The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).

Analysis and Disposition

12Neither party appears to have made a formal offer to settle the motions. Ms. Hamilton states that she made “several” offers to settle but she has not provided copies of these offers, other than the material referred to in her affidavits filed on the motion. No formal offers to settle were provided to me and therefore I will proceed on the basis that neither party obtained a result that was as good as or better than a formal offer made under Rule 18.

13Mr. Blair was successful on the motions and is entitled to his costs unless, pursuant to Rule 24(4), he is found to have behaved unreasonably. I do not find that Mr. Blair has acted unreasonably. It was reasonable for Mr. Blair to bring these motions seeking enforcement of the agreed upon parenting schedule and to obtain a custody and access assessment.

14Ms. Hamilton now argues that Mr. Blair acted unreasonably by bringing this matter to court, particularly when it was being addressed through arbitration. However:

a. Ms. Hamilton failed to comply with the Arbitration Awards dated June 29, 2018 and October 5, 2018 that required compliance with the final parenting plan;

b. in her email to Mr. Blair sent on October 5, 2018, she stated “I suggest the next step should be to get a court date to resolve this in a legally binding manner.”

c. at the hearing of the motion before me on November 27, 2018, Ms. Hamilton took issue with the Arbitration Awards and advised that she will be appealing the October 5, 2018 award; and

d. at the hearing of the motion before me on November 27, 2018, Ms. Hamilton was in agreement that the Parenting Coordinator Agreement did not oust the court’s jurisdiction to deal with the motion.

15I find that Ms. Hamilton has acted unreasonably by failing to comply with the final parenting plan, by unilaterally attempting to make changes to that plan even in the face of two arbitration awards that told her not to, and in serving her motion material on the morning of the motion. Ms. Hamilton’s submissions on costs are a continuation of this unreasonable conduct in that she blames Mr. Blair for starting the very court proceedings that she expressly invited him to do, and now seeks to return to an arbitration process that she previously viewed as not being binding upon her.

16These issues were important to the parties but not overly legally complex. They were somewhat factually complex given the changing position, justifications and rationalizations of Ms. Hamilton.

17Mr. Blair’s bill of costs is based on his lawyers’ hourly rates of $325 for Ms. Campbell and $195 for Ms. Coulterman. Ms. Hamilton did not assert that these rates were unreasonable. I find these rates to be reasonable and proportional.

18Mr. Blair’s bill of costs includes approximately 29 hours of counsel time for communications with counsel, preparation of court material and attendance on two court appearances, for total fees of $7,355.00 (not including HST). I find these fees to be reasonable and proportional.

19Mr. Blair’s costs include disbursements of $746.75, which I also find are reasonable and proportional.

20Rule 24(12)(b) requires the court to consider “any other relevant matter”. This may include Ms. Hamilton’s ability to pay an award of costs as well as the expectations of the parties. Ms. Hamilton argues that she has already spent $30,000 on arbitration and mediation since the parties’ divorce three years ago and cannot afford to pay Mr. Blair’s legal fees. She has incurred legal fees of her own. Ms. Blair has not filed a financial statement but the Separation Agreement, dated May 4, 2017, has been filed and reflects that at the time of the agreement, Ms. Hamilton’s income was approximately $101,848 per year, and Mr. Blair’s was $81,222 per year. The Separation Agreement also provides that even though Ms. Hamilton earns more income than Mr. Blair and they have an equal parenting schedule, during the period that Ms. Hamilton is buying back pensionable service, she is not required to pay child support to Mr. Blair.

21I do not find in the circumstances that there is evidence to support a reduction in the cost award due to an argument that it would impose an unwarranted financial hardship on Ms. Hamilton, particularly in comparison to any financial hardship imposed on Mr. Blair due to the legal fees that he has had to pay. I do find that Ms. Hamilton, having paid legal fees in the past, as well as arbitration and mediation fees, should have been aware and expected that Mr. Blair would be incurring the level of legal fees that he did if he was required to pursue this matter in court.

22Mr. Blair’s legal fees, inclusive of tax and disbursements, total $9,154.48. While I have found that Ms. Hamilton has acted unreasonably, I am not prepared to award full indemnity costs. I find that a small reduction from full indemnity is warranted given that Mr. Blair did not make a formal offer to settle, Ms. Hamilton did agree to some of the relief sought, although only at the motion, and bearing in mind that I have not found that Ms. Hamilton’s conduct rises to the level of bad faith. Taking all of these factors into consideration, I order Ms. Hamilton to pay Mr. Blair his costs of the motion heard on November 27, 2018 fixed in the amount of $7,000, inclusive of HST and disbursements. These costs shall be payable forthwith.

Footnotes

1. 1Mattina v. Mattina, 2018 ONCA 867
2. 2Family Law Rules, rule 2(2)
3. 3O.Reg. 114/99 as am
4. 4M.(C.A.) v. M.(D.), 2003 18880 (ON CA), [2003] O.J. No. 3707, at para. 40
5. 5Berta v. Berta, 2015 ONCA 918 at para. 94