Court File and Parties
COURT FILE NO.: FC-10-1845-3
DATE: 2019/12/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tara Tracey Wakeling, Applicant
-and-
Anthony Justin Debassige, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jennifer Reynolds, Counsel for the Applicant Francis Aheto-Tsegah, Counsel for the Respondent
HEARD: In Writing
amended Costs ENDORSEMENT
The text of the original endorsement dated November 29, 2019 was amended on December 18, 2019 and the description of the amendment is appended
[1] This endorsement determines costs following the Motion to Change heard on June 18, 2019 and decided on July 2, 2019.
[2] 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 (Rule 2(2) of the Family Law Rules)[^1].
[3] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. 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 party[^2].
[4] Ms. Wakeling seeks costs fixed at $25,000. She argues that she was the successful party, made several reasonable offers to settle, acted reasonably, that Mr. Debassige did not act reasonably, and the matter was complicated due to extensive and voluminous material filed by Mr. Debassige. Ms. Wakeling incurred costs totalling $28,337 inclusive of tax and disbursements ($449.45). The sum of $25,000 represents 75% of her costs incurred from the beginning of this matter in January of 2017, plus 100% of her costs incurred after her offer made on March 27, 2018.
[5] Mr. Debassige does not take issue with the reasonableness and proportionality of Ms. Wakeling’s legal fees. His legal fees totalled approximately $21,000 inclusive of disbursements. Mr. Debassige also did not take issue with Ms. Wakeling having success on the motion, although he argued that she was not successful on all issues, as he achieved some changes dealing Aboriginal Day and powwows, and Ms. Wakeling was not successful in obtaining an order that prevented him from bringing any further motions without leave. Mr. Debassige did not make an offer to settle the motion but argues that this is because it was not practical that the issues could have been settled. Mr. Debassige also argues that he has limited financial resources.
[6] None of the costs incurred for earlier stages in these proceedings have previously been determined by the court.
[7] I find Ms. Wakeling’s costs of $28,337 are reasonable and proportional. Mr. Debassige’s fees support this finding. I find that it is reasonable that Ms. Wakeling’s fees are somewhat higher than Mr. Debassige’s, given the steps taken on her behalf to move this matter towards a resolution, including preparing detailed settlement offers.
[8] Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs[^3]. I find that Ms. Wakeling was more successful on the key issues in dispute. The main issues in dispute were Mr. Debassige’s request that the children primarily reside with him in Ottawa and change schools. Mr. Debassige was unsuccessful on both of these issues.
[9] I do not find that the fact that orders were made regarding Aboriginal Day and powwows diminishes Ms. Wakeling’s presumptive entitlement to costs as the successful party. This is particularly so when compared to her offers to settle, which provided for similar wording as was incorporated into the order that was granted. I do not find that Mr. Debassige was successful on these issues when he did not provide any offer to settle that reflected the terms that were granted on the motion.
[10] Ms. Wakeling was not successful in obtaining an order preventing Mr. Debassige from bringing further motions without leave. However, this was not the main issue in dispute and involved comparatively less time and resources.
[11] I do not find that Ms. Wakeling’s offer dated March 27, 2019, or offer dated May 29, 2019, presumptively entitles her to full recovery of her costs from the date of her offer under Rule 18(14). Rule 18(14) provides that a party is, unless the court orders otherwise, entitled to costs on a full recovery basis from the date an offer was served if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[12] Ms. Wakeling’s March 27, 2019 offer only provided for settlement of the summer access schedule and did not address all of the issues on the motion to change. While it included terms that were very close to the outcome on the motion on summer access, I am not prepared to find that the result at the motion was as favourable or more favourable to Ms. Wakeling as the terms of her offer on this issue. Ms. Wakeling’s May 29, 2019 offer provided for a consolidated order, which is beyond what was ordered at the motion, although both parties have agreed to consolidate the orders.
[13] Even though Ms. Wakeling’s offers do not attract the cost consequences under Rule 18(14), her offers are still a factor to consider under Rule 24(12)(a). Her offers support that she was making very reasonable efforts to address the issues on the motion and support a finding that her conduct was reasonable. In comparison, Mr. Debassige did not make any offer to settle the issues.
[14] I do not find that Ms. Wakeling is entitled to a full recovery of her costs due to Mr. Debassige acting in a manner that constitutes bad faith. I do find that Mr. Debassige’s conduct was unreasonable in several respects. The first is Mr. Debassige bringing a Motion to Change, seeking significant changes in the parenting arrangement for a nine and 13-year-old, without independent admissible evidence on the children’s views and preferences. The second is Mr. Debassige proceeding with a Motion to Change that completely ignored the existence of the 2016 Quebec Order that followed his variation application to the Quebec Superior Court. The third is Mr. Debassige’s failure to provide an offer to settle on any of the issues. On this point, I wholly reject Mr. Debassige’s argument that the issues in dispute were not capable of being settled in any practical way. This is not the case, particularly concerning the summer and powwows schedule. Mr. Debassige’s unreasonableness is a factor that militants in favour of an increase in the cost award. His unreasonable conduct greatly increased the costs incurred by Ms. Wakeling.
[15] Mr. Debassige’s limited financial resources are a factor in determining costs. However, the four fundamental purposes of cost rules must still be paramount - (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 (Rule 2(2) of the Family Law Rules)[^4]. This is even more so in this case, where Mr. Debassige has been responsible for starting several variation proceedings since the parties’ 2012 Divorce Order.
[16] In addition, at the hearing of the Motion to Change, on the issue of whether Mr. Debassige should be prevented from bringing further motions without leave, Ms. Wakeling’s counsel raised concerns that an award of costs would not be effective at discouraging and sanctioning Mr. Debassige’s conduct in bringing unsuccessful motions. In response, Mr. Debassige’s counsel assured the court that a cost award would be available against Mr. Debassige, as the issue of costs would not be based on his financial circumstances.
[17] Taking all of the above factors into consideration, I order Mr. Debassige to pay Ms. Wakeling costs of the Motion to Change heard on June 18, 2019, fixed at $20,000. This amount represents approximately 60% of Ms. Wakeling’s total fees. I find this amount to be reasonable and proportional. This reflects my finding that Ms. Wakeling was successful and is entitled to a partial indemnity of her costs, being approximately 60%, and balances the many factors, including that a higher award of costs is called for due to Mr. Debassige’s unreasonable conduct and Ms. Wakeling’s reasonable offers to settle, although mitigated somewhat due to Mr. Debassige’s limited financial resources. To be clear, if not for Mr. Debassige’s limited financial circumstances, I would have ordered more costs against him.
[18] This order shall bear post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”).
Justice P. MacEachern
Date: December 18, 2019
Appendix
- Paragraph 12 should state Ms. Wakeling instead of Ms. Horrocks.
COURT FILE NO.: FC-10-1845-3
DATE: 2019/12/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Tara Tracey Wakeling, Applicant
-and-
Anthony Justin Debassige, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jennifer Reynolds, Counsel for the Applicant Francis Aheto-Tsegah, Counsel for the Respondent
amended costs ENDORSEMENT
Justice P. MacEachern
Released: December 18, 2019
[^1]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867
[^2]: Berta v. Berta, 2015 ONCA 918 at para. 94
[^3]: Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 (SCJ- Family Court)
[^4]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867