Superior Court of Justice - Ontario
COURT FILE NO.: F0-19-1022
DATE: 2019/11/22
RE: Curtis Jones, Applicant
AND:
Courtney Claire Cavangh, Respondent
BEFORE: Madam Justice M. Fraser
COUNSEL: Dylan Crosby, Counsel for the Applicant
Victoria Legris, Counsel for the Respondent
HEARD: In writing
costs ENDORSEMENT
[1] This ruling on costs arises from a motion I heard on October 8, 2019. The motion primarily concerned a request for the two children of the parties’ relationship to return to a week-about parenting arrangement between the parties. I did not grant this request.
[2] As stated in Mattina v. Mattina, 2018 ONCA 867, modern costs rules are designed to foster four fundamental purposes (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 subrule 2(2) of the Family Law Rules (the rules).
[3] Subrule 24(1) of the rules 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 22584 (ON SC), [2000] O.J. No. 330 (SCJ- Family Court)). In this respect, 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.
[4] If there has not been an offer made which complies with subrule 18(14), the court still can take into account any written offer to settle when exercising its discretion over costs: Subrule 18(16).
[5] In exercising its discretion to order costs, the court is to consider the factors set out in subrule 24(12) which provides as follows:
24 (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.
[6] Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour. It reads as follows:
(5) DECISION ON 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.
[7] Costs must be proportionate to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.
[8] The proper determination of the amount of costs to be awarded in a family law case requires the Court to reflect on many factors. It is more than a simple mathematical exercise: Delellis v. Delellis 2005 36447 (ON SC), [2005 CarswellOnt 4956 (Ont. S.C.J.)], 2005 36447.
Analysis:
[9] The applicant was the successful party to the motion. This is not disputed. I conclude that he is entitled to recover a portion of his costs from the respondent.
[10] “Offers” were conveyed by email from the applicant’s solicitor to the respondent’s solicitor. However, these email communications do not meet the formal requirements to constitute a Rule 18 Offer to Settle. The terms are not signed by the applicant nor the applicant’s lawyer.
[11] The applicant argues that even if the offer was unsigned, it meets the requirements of sub-rule 18(14) based upon the reasoning found in Gogas v. Gogas (2011), 11 R.F.L. (7th) 369 (Ont. S.C.J.). With respect, I disagree with this interpretation of Rule 18. An offer to which subrule 18(14) may apply is specifically defined in subrule 18(4). This latter subsection confirms that the offer must be signed by both the party and the lawyer.
[12] As such, any costs awarded to the respondent are a matter of court discretion.
[13] I will now consider the subrule 24(12) costs factors:
(1) The issues were not particularly complex or difficult. The issues were of significance, however, to the parties given the decision establishes the interim custodial arrangement pending trial;
(2) Given the matter in issue, it was understandable that the respondent took the position she did. The respondent did not want her relationship with the children compromised. Cases of this nature are often difficult to resolve and often need to be decided by the court. While it does not absolve the respondent from the consequences of a cost disposition, her position was nonetheless understandable. Her position was not unreasonable;
(3) While the respondent’s position was unsuccessful, my finding that there needed to be something other than a week-about arrangement had little to do with a desire by the children to spend less time with the respondent. In fact, this was not the case. The temporary parenting schedule ordered was in aid of reducing the disruptiveness a shared arrangement caused the children during the school week;
(4) The applicant’s conduct did not help to reduce the conflict between the parties by his taking the position that he should assume sole custody (as opposed to joint) of the children;
(5) The respondent did not dispute the hours spent by the applicant’s counsel or his rate as set out in the bill of costs. I conclude both are reasonable; and
(6) The applicant’s email offer to resolve matters was similar to the result.
Conclusion:
[14] Having regard to all of the considerations referred to in these reasons, I find that a reasonable and proportionate costs award to the applicant should be $1,800.00 inclusive of recoverable disbursements and HST.
Justice M. Fraser
Date: November 22, 2019