Court File and Parties

COURT FILE NO.: FC-19-477 DATE: 2020/06/03 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

JASON MICHAEL SEARS Applicant – and – SARAH LINDA CORISTINE Respondent

Counsel: Richard P. Bowles, for the Applicant Ron Paritzky, for the Respondent

HEARD: In writing

COSTS ENDORSEMENT

(Motions re Interim Access)

Corthorn J.

Introduction

[1] The parties were before the court in December 2019, on the return of their respective motions related to the father’s access, on an interim basis, with the parties’ two children. The father sought to increase the children’s access with him; the mother sought to reduce it. The terms and conditions of access including drop-off, pick-up, and the conduct of the parties when with the children were also at issue.

[2] Two decisions were released. The first decision addressed the access schedule for the December 2019 holiday period. The parties were unable, following argument on the motion, to agree to an interim interim order in that regard. An endorsement dealing with that issue was released in the days following the return of the motions. The ruling on the motions was released in March 2020: Sears v. Coristine, 2020 ONSC 1455 (“the Ruling”).

[3] Prior to releasing the Ruling, the court was not aware that the parties had exchanged offers to settle. The court did not invite submissions with respect to costs. In the Ruling, the court concluded that neither party was entitled, at this time, to their respective costs of the motions: at para. 105. The parties’ respective costs were fixed, with the issue of entitlement to costs reserved to the trial judge.

[4] Following the release of the Ruling, the court was informed that offers to settle had been exchanged. The mother’s request that the parties be permitted to make costs submissions was granted. The parties delivered costs submissions related to entitlement, scale, and quantum.

[5] The mother seeks costs in the amount of $16,500 for the motions and the costs submissions. The mother relies on her offer to settle dated December 12, 2019 (“the Offer”). She submits that the outcome on the motions is more favourable to her than were the terms of the Offer and, as a result, she is entitled to costs on a full recovery basis from the date of the Offer forward. The mother relies on the costs consequences set out in r. 18(14) of the Family Law Rules, O. Reg. 114/99 (“Rules”).

[6] The father concedes that the mother was “the more successful party” and she is therefore entitled to an award of costs. The father points out that the mother was not, however, entirely successful on the motions.

[7] For several reasons, the father submits that the costs to which the mother is entitled are less than the $16,500 claimed. Those reasons include that the costs claimed are more than double the costs set out in the father’s costs outline on the motions. The father also relies on general principles with respect to costs, including the reasonable expectations of the opposing party, proportionality, and overall fairness and reasonableness. The father did not propose an amount for the costs to be awarded to the mother.

[8] Costs in a family law proceeding are governed by s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99, and principles established in the case law.

[9] With the issue of entitlement conceded, the only issues to be determined are the scale and quantum of the costs award in favour of the mother.

Scale

a) Positions of the Parties

[10] The mother’s position is that with the outcome on the motions, she “bested” the terms of the Offer. She submits that the Offer meets the criteria of r. 18(4) and therefore seeks her costs on a full recovery basis from the date of the Offer forward. The costs now claimed by the mother are less than the costs set out in the costs outline filed on her behalf at the conclusion of argument on the motions (“Costs Outline”).

[11] The father’s position is that the Offer was limited in scope – it did not address all of the issues determined on the motions. The father submits that, for example, the Offer did not address any of the terms ancillary to the main issue of access. He submits that the Offer was silent on drop-off, pick-up, and the parties’ conduct. The father emphasizes that the mother was unsuccessful on some of those issues.

b) Analysis

[12] The burden of proving that the relief granted is as favourable as or more favourable than the terms of the Offer rests with the mother: r. 18(15). The type of comparison required is a general assessment of the overall compatibility of the Offer as contrasted with the relief granted: Jackson v. Mayerle, 2016 ONSC 1556, at para. 47.

[13] The Offer is comprised of four substantive paragraphs. Two of those paragraphs deal with the father’s access schedule and one with the location for the exchanges. The fourth paragraph calls for the terms of the interim interim order made at the October 2019 case conference to remain in effect. Making the type of comparison called for in Jackson, I find that the Offer meets the criteria of r. 18(14), item 5 (i.e., the relief granted is as favourable as or more favourable than the terms of the Offer). I find that the Offer also meets the criteria of r. 18(14), items 1-4.

[14] The mother’s Offer demonstrated a reasonable effort to settle the issues on the motions: Jackson, at para. 50.

[15] The mother is entitled to costs on a full recovery basis from December 12, 2019 forward. The balance of the costs to which the mother is entitled shall be fixed in the ordinary course.

Quantum

a) Positions of the Parties

[16] The positions of the parties with respect to quantum are summarized in the introductory section of this endorsement.

[17] The mother seeks her costs of the motions and the costs submissions in the total amount of $16,500 (i.e., for fees, disbursements, and applicable HST). The total of the costs identified in the Costs Outline was $17,780 (rounded figure). That amount is broken down as follows:

Fees $ 15,594.00 HST on fees $ 2,027.22 Disbursements (incl. HST) $ 147.86

b) Analysis

[18] A number of findings made in the Ruling with respect to costs are still relevant following receipt of costs submissions:

• It was reasonable for the mother’s counsel, who was retained shortly before the return date for the motions, to do the majority of the work in preparation for the motions: at para. 102. The lack of delegation of the work from counsel to another is not a factor in fixing costs; and
• The hours docketed by the mother’s counsel are reasonable: at para. 103.

[19] The Costs Outline does not differentiate between work done prior to the date of the Offer and work done subsequent to that date. A list of the documents filed on the motions appears in paragraph 26 of the Ruling. From that list, I note that the second of the mother’s two affidavits was sworn on December 12, 2019. That is the same date as that of the Offer. The first entry in the Costs Outline for work subsequent to the completion of the affidavits the mother relied on is for service of the affidavits and preparation of a motion confirmation form. That work was performed by a clerk.

[20] The first entry thereafter for work done by the mother’s counsel is for 4.6 hours and is described as “Work on file; prepare for motion”. There is a subsequent entry of 2.3 hours for counsel’s work described as “Finish preparing for motion”. The next entry is for counsel’s attendance on the return of the motions. I draw an inference and find that the work to which the full recovery scale applies begins with the 4.6-hour entry.

[21] The Costs Outline reflects 40.7 hours of docketed time by the mother’s counsel and the clerk in his office. Taking into consideration the finding made immediately above, that time is broken down as follows:

Counsel (to Dec. 12) 29.4 hours Clerk (to Dec. 12) 0.9 hours Counsel (Dec. 13 ff.) 10.4 hours

[22] Counsel’s actual hourly rate is $390. The reasonableness of that hourly rate is not in dispute. Applying that hourly rate to counsel’s docketed hours from December 13 forward, results in fees of $4,056 (plus HST) on a full recovery basis.

[23] When fixing costs, something other than strict arithmetic is, however, required. Factors such as reasonableness, proportionality, and the reasonable expectations of the opposing party must be considered.

[24] The father submits that his reasonable expectations did not include that the mother would incur costs that are approximately double his costs. That submission, however, fails to take into consideration (a) the amount of work done on the father’s behalf, when measured in hours, (b) the timing of service of the father’s motion materials, and (c) the extent of the evidence upon which the father relied in support of his motion.

[25] The father’s counsel chose to delegate some of the work on the motion to a clerk. Regardless, the total number of hours docketed by the father’s counsel and his clerk is roughly the same as that docketed by the mother’s counsel and his clerk. The main reason for the difference in the dollar amounts associated with counsel’s respective work is that the mother’s counsel did the majority of the work; the father’s counsel chose to delegate a sizeable portion of the work to a clerk.

[26] The majority of the affidavits the father relied on, in the capacity of a moving party, were sworn on December 6 and 7, 2019. The father’s notice of motion setting out the return date of December 17, 2019, is dated October 24, 2019 and was served well in advance of the return date. The father left it until a matter of days prior to the return date to serve the supporting affidavits. That timing left the mother and her counsel with only a few days in which to prepare responding materials. In that situation, it was reasonable for the mother’s counsel to do the majority of the work. In such a short time frame, delegation of work would not necessarily have been efficient or effective.

[27] The court is entitled to consider the manner in which evidence is presented: Jackson, at para. 102. The nature and volume of the evidence the father relied on are relevant to fixing costs. The first of his two affidavits is 135 paragraphs long. It likely came as no surprise to the father that the mother responded with her own 86-paragraph long affidavit (the first of her two affidavits).

[28] In addition to his affidavit, the father relied on affidavits from five other individuals. Once again, it likely came as no surprise to the father that the mother responded with affidavits from five individuals.

[29] As highlighted in the Ruling, the parties exchanged a total of 13 affidavits in the space of seven days, a mere five business days: at para. 32. The court found that much of the evidence was not relevant to the issues to be determined: at para. 3. The contradictory nature of the affidavits, on which there was no cross-examination, was also the subject of comment from the court. At para. 32, the court observed that the court was “faced with ‘the impossible task of attempting to assess the relative merits of parties who have filed numerous contradictory affidavits contradicting the affidavits of the other’: Kimpton v. Kimpton” (citation omitted).

[30] The father’s position on the motions was that the mother has conflictual relationships with many people involved in the children’s lives. Whatever the shortcomings (as found by the court) in the nature and quality of the evidence the mother relied on, the father cannot be surprised that the mother responded as she did.

[31] In summary, I find that a reasonable person having conducted themselves as the father did with respect to the nature, volume, and timing of service of his evidence would have expected the mother to respond as she did. That finding is relevant primarily to fixing costs, in the usual course, with respect to work done prior to the date of the Offer. Relying on the Costs Outline, that portion of the costs is $11,538 ($15,594 - $4,056).

[32] The mother submits that the actual costs incurred for work done by her counsel to and including December 12, 2019 exceeds the $11,538 calculated above. She highlights that prior to retaining her current counsel, she was represented by another lawyer. The mother submits that the fees incurred for the work, on the motion, of her previous lawyer are $2,555. That amount is not included in the $11,538 calculated above. The mother submits, therefore, that no reduction is warranted of the fees for the work to and including December 12, 2019.

[33] It is not possible for the court to assess the merits of a claim for costs in the absence of the documents and information required under the Rules. In the absence of any documentation addressing the fees incurred for the work done by the mother’s previous lawyer, the court is not prepared to consider those fees when fixing costs.

[34] Lastly, I consider the father’s ability to pay costs. The father asks the court to consider that, in addition to incurring costs in the family law proceeding, he is incurring costs for (a) counsel to defend him in a civil proceeding commenced by the mother and in which he is a defendant, and (b) yet another counsel to represent him in criminal proceedings arising from charges of alleged assault and sexual assault on the mother.

[35] The father has not provided any case law directly on this point. In any event, I note the following with respect to the expenses by the father incurred in other proceedings. There is no evidence as to whether, in the civil proceeding, the father was required to retain counsel personally or his defence in that action is being funded by an insurer (i.e., a homeowner’s policy or a recreation property policy). The action stems from an incident that occurred at the father’s family’s cottage. There is also no evidence as to the expenses incurred in the criminal proceeding or the stage of the proceeding at which the charges were withdrawn.

[36] The court recognizes that the parties are both individuals of modest means. The mother is described as the larger income earner, historically. She was, however, on long-term disability benefits as of the date of return of the motions. She is not practising law at this time.

[37] The parties are now raising their two children from separate households. It is important that the parties are both able to provide for the children. In fixing the costs payable by the father, the court has considered that the costs award not impair the father’s ability to make child support payments.

[38] For the reasons set out above, the court fixes the mother’s costs of the motions and the costs submissions in the total amount of $12,580. That amount is calculated as follows:

Fees $ 11,000.00 HST on fees $ 1,430.00 Disbursements (incl. HST) $ 147.86 Total $ 12,577.86 Rounded to $ 12,580.00

Summary

[39] The father shall pay to the mother her costs of the motions and of the costs submissions in the amount of $12,580.00 inclusive of fees, disbursements, and applicable HST.

Madam Justice Sylvia Corthorn Released: June 3, 2020