Court File and Parties
Court File No.: FC-09-587-2 Date: 2019/12/02 Superior Court of Justice - Ontario
Re: Warren John Dennis Stow, Applicant -and- Cynthia Majorie Davidson, Respondent
Before: Justice P. MacEachern
Counsel: Katrina Anders, Counsel for the Applicant Rodney Cross, Counsel for the Respondent
Heard: In Writing
Costs Endorsement
[1] This endorsement determines costs following the Motion to Change heard on April 2, 2019, and decided on July 3, 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, O. Reg. 114/99); Mattina v. Mattina, 2018 ONCA 867.
[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 Berta v. Berta, 2015 ONCA 918 at para. 94.
[4] Subrule 24(1) 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. To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers Lawson v. Lawson. Each party’s position at the motion should also be examined.
[5] Both parties seek costs and claim to have had more success than the other has, although each acknowledges divided success. Ms. Davidson seeks costs fixed at $6,500. Mr. Stow seeks costs fixed at $4,000.
[6] In my decision, I varied the parenting terms from the January 13, 2012 Order to remove Mr. Stow’s alternate Thursday overnight access, changed the alternate weekend return time from Monday morning to Sunday night, but added an alternate Friday evening visit on Ms. Davidson‘s weekend. A significant factor in making these changes was that the child’s views and preferences were that she did not enjoy the long morning commute to school from Mr. Stow’s home. The child also found the one-week summer access periods too long and preferred shorter periods of three to four days. The child also did not want to have prescribed times for telephone calls. Changes were made to reflect these views and preferences.
[7] Ms. Davidson argues that she was more successful than Mr. Stow was because she sought the changes in the school and summer schedule based on the views and preferences of the child. However, Ms. Davidson sought to reduce Mr. Stow’s access beyond that which was ordered. She sought a more restrictive access schedule during the school year and the summer than what was ordered. Ms. Davidson also sought a number of other restrictive terms that were not granted, including a restraining order, for transfers to take place at a location in Kemptville, to impose a requirement that Mr. Stow be personally present at all times that the child is in his care, that the entire access visit would be cancelled if Mr. Stow was unavailable for any part. Mr. Stow argues that he was more successful than Ms. Davidson.
[8] I find that success was divided on this motion. Neither party achieved all of the relief that they sought on the motion. It is arguable that Ms. Davidson achieved more success on the issue of the access schedule than Mr. Stow because the result of the motion may be seen as being closer to what she was seeking than what Mr. Stow was seeking. But this is offset by her lack of success, and Mr. Stow’s corresponding success, on the many other restrictive terms that she sought.
[9] I have considered Ms. Davidson’s two offers and that Mr. Stow did not make an offer. These offers do not change my conclusion that the parties had divided success. Ms. Davidson did not achieve a result as favourable or more favourable than her offers. She is not presumptively entitled to costs under Rule 18(14). Ms. Davidson’s offer could not be accepted in separate parts. The weight that can be placed on Ms. Davidson’s offers is limited because the offers included provisions for child support, which cannot be assessed for reasonableness because those issues were adjourned, due to neither party filing the required financial documentation. Also, while Ms. Davidson’s offers demonstrate that she was prepared to settle the matter without the numerous restrictive provisions she sought at the motion, the clauses that she sought on access were not as favourable to Mr. Stow as the outcome of the motion.
[10] Both parties provided bills of costs. Ms. Davidson submitted a bill of costs for the period from June 16, 2018, to April 2, 2019, showing that she incurred legal fees of $8,038.13 inclusive of disbursements and tax. She seeks costs fixed at $6,500, which represents approximately 80% of these costs, which is close to a substantial indemnity level. Mr. Stow submitted a bill of costs for the period from June 25, 2018, to April 8, 2019, showing that he incurred legal fees of $15,322. He sought costs fixed at $4,000, which is a less than partial indemnity, in recognition of the divided success. It is difficult to assess the reasonableness and proportionality of these legal fees because neither party addressed what portion of the fees related to the child support issues. The child support issues were adjourned because neither party provided the required financial documentation. The fees incurred to address child support should not be part of the determination of costs on the access issues. Given the issues in dispute, and noting the limits to the information provided to me, I find that fees in the range of $8,000 to $10,000 to be reasonable and proportional.
[11] I do not find that either party acted in such an unreasonable manner that warrants a sanction of costs. I do not find that it was unreasonable for Mr. Stow to seek questioning given the restrictive terms sought by Ms. Davidson and the nature of the issues in dispute.
[12] Taking all of the above factors into consideration, including, in particular, the factors under Rule 24(12), and the divided success of the parties, I do not find that there should be an order of costs for this motion.