Closner v. Levine, 2019 ONSC 636

Closner v. Levine

COURT FILE NO.: FS-17-00416379

DATE: 20190124

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Neil Closner Applicant

– and –

Sherri Levine Respondent

COUNSEL:

G. Joseph and S. Timerman, for the Applicant

J. Moldaver and J. Rosenberg, for the Respondent

HEARD: January 24, 2019

BEFORE: Shore J.

Reasons for Costs

1On November 22, 2018, I heard a long motion with respect to the residential schedule of the parties’ daughter. I released my decision on November 29, 2018. In my decision, I asked counsel for submissions on costs. These are my reasons on the issue of costs of the long motion. I rely on the facts set out in my November 29, 2018 decision.

2The starting place for costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that subject to the provisions of an Act or Rules of court, costs are in the discretion of the court. Rule 24 of the Family Law Rules¹ provides guidelines on costs in the family law context. Rule 24(1) provides that a successful party is entitled to costs. However, this does not require that a successful party is always entitled to costs.

Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 2000 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para. 1. This presumption does not, however, require that the successful party always be entitled to costs: M.(C.A.) v. M.(D.), at para. 40. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, at para. 94.²

3There are a number of other factors to consider, provided for in rule 24 and elaborated on in other decisions of the Court.

4The Court of Appeal, in Serra v. Serra³, established that that modern family cost rules are designed to foster three fundamental purposes:

1. to partially indemnify successful litigants;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behaviour by litigants.

5Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly.

6Rule 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

(vii) any other relevant matter.

7Finally, the presumption that a successful party is entitled to costs applies equally to custody and access cases⁴.

8There is no dispute that the Applicant was successful on the key issue of the residential schedule of the child, while not entirely successful on some of the smaller issues. He also did as well as, if not better than, his offers to settle (give or take a few of the smaller issues). If I were to stop at these two factors, it would appear that Mr. Closner is entitled to his costs.

9However, the Family Law Rules dictate that the inquiry must go further. The success of the party is only a starting point. I have considered the factors set out in Rule 24 (including subrules 24(4), (5) and (12)). I have also considered rule 18(14), which provides that a party that does at least as well as their offer to settle is entitled to recovery of costs, “unless the court orders otherwise”.

10Amongst other factors, costs are designed to discourage and sanction inappropriate behaviour. Rule 24(4) provides that a successful party that behaved unreasonably during a case may be deprived of his costs or required to pay the costs of the unsuccessful party.

11Rule 24(5) provides guidance on how to evaluate reasonableness:

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

12There is still an element of discretion in determining costs. As set out above, success and offers to settle are two factors to consider, however, a party’s behaviour can also be considered. Rule 24(12)(a)(i), reiterates that the court is instructed (“shall”) to consider the reasonableness of the costs being requested, in light of “each party’s behaviour”.

13In the context of a custody and access dispute, a pattern of conduct which shows lack of respect for the letter and spirit of court orders or the relationship between a parent and a child is the type of behaviour which should cause the court to seriously question the appropriateness of a costs award in favour of the successful party (see Proulx v. Proulx, 2017 ONSC 5134 at para 31).

14My decision of November 29, 2018, expressed concern about both parties’ behaviour in escalating the tension between them, contrary to the best interest of the child. The caution set out therein is worth repeating here:

In summary, neither party should view this order as a “success” or a “victory”. The real message that they should both be hearing is that both parties have escalated the conflict to a point where they are both losing sight of what is really in the best interest if the child….Sadly, the overriding concern when considering Quinn’s best interests is the effect the escalating conflict between the parties is having (and has had) on Quinn. Mr. Closner and Ms. Levine are really the only two people who can control this issue and have not done so to date.

15Further, I will also repeat Mr. Hurwitz’s observations, in that “both parents were doing things to contribute to escalating the conflict instead of diminishing it” and that “their anger and frustration with one another is causing them both to disengage from parenting together and is causing increased stress for themselves and their daughter”.

16The November 29, 2019 decision revised Quinn’s residential schedule to try to shelter Quinn from the conflict, conflict in which Mr. Closner is partially to blame. Mr. Closner’s materials, in support of his motion, continue in the vein of a high conflict case. Like Ms. Levine, he too has participated in blameworthy conduct, contrary to the best interest of the child. I meant when I said that neither party should view this as a victory, as the current circumstances are quite tragic for Quinn. Both parties exhibited behaviour which has caused both this Court and Mr. Hurwitz concern.

17Mr. Closner’s behaviour cannot be condoned or rewarded by awarding him full or substantial recovery of costs. This is a case where the behaviour of the Applicant should reduce his cost recovery. This is not a case for full-recovery of costs or even substantial recovery. While he ultimately obtained an order similar to the one requested in his motion material, the decision was made for reasons largely unrelated to the argument he put forward in his material. However, Mr. Closner is still entitled to some of his costs, given his success and his offers to settle.

18Looking at quantum, the Court of Appeal, in Beaver v. Hill, 2018 ONCA 840 at paragraph 12, clarifies that the wording of the Rules “makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.”

24(11) A person setting the amount of costs shall consider,

a) The importance, complexity or difficulty of the issues;

b) The reasonableness or unreasonableness of each party’s behaviour in the case;

c) The lawyer’s rates;

d) The time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument and preparation and signature of the order;

e) Expenses properly paid or payable; and

f) Any other relevant matter.

19Mr. Closner requested costs on a substantial indemnity basis in the amount of $50,000.00. No issue was raised by the other side with respect to the reasonableness of the time spent and fees charged by Mr. Closner’s lawyers. I have reviewed the detailed bills. Sometimes lawyers are criticised for billing for two lawyers attending at court. This case was very document heavy and it was clear that Ms. Timerman’s assistance in court was invaluable.

20In considering whether the amount claimed is fair, reasonable and proportional, it is helpful to consider the amount that the other party has paid for their own legal fees. In this case, Ms. Closner’s own legal bills were similar. The parties each filed significant materials. The motion took an entire day. The parties participated in questioning. The issue of Quinn’s residential schedule was and is of primary importance to both parties.

21Rule 24 should be considered in conjunction with the primary objectives of the Rules, which includes an obligation to ensure that cases are deal with justly.

22In summary, while there is a presumption that Mr. Closner is entitled to his costs based on his success on the motion and his offer to settle, the presumption is rebutted having regard to Mr. Closner’s behavior and conduct as far as maintaining a high level of acrimony and conflict between the parties.

23For the reasons set out above, I conclude that Mr. Closner is entitled to cost of $15,000.00, inclusive of HST and disbursements, payable within 60 days.

Shore J.

Released: January 24, 2019

COURT FILE NO.: FS-17-00416379

DATE: 20190124

ONTARIO

SUPERIOR COURT OF JUSTICE

Footnotes

1. 1O.Reg.114/99
2. 2Mattina v. Mattina, 2018 ONCA 867 at para 10.
3. 32009 ONCA 395, [2009] O.J. No. 1905 and see Mattina v. Mattina, 2018 ONCA 867; Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22.
4. 4Britt v. Britt, [2000] O.J. No. 5981 (S.C.), at para. 9.