Court File and Parties

COURT FILE NO.: FC-15-2531 DATE: 2020/06/18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dana K. Burke, Applicant AND Bradley Bouzane, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Beverly Johnston, Counsel for the Applicant John Summers, Counsel for the Respondent

HEARD: In writing

Costs Endorsement

[1] On May 28, 2020, the Court released its decision at 2020 ONSC 3336 dealing with the issue of what school the two children should attend. The Court determined that the children should attend the school proposed by the Applicant mother in September 2020.

[2] If the parties were unable to agree on the issue of costs, they were to provide me with written submissions.

[3] Having considered the parties’ respective submissions, the Bill of Costs and the Family Law Rules, O. Reg. 114/99 (“FLRs”), I award costs in the amount of $3,000.00 to the mother to be paid by the Respondent father.

Mother’s Position

[4] The mother submits that she is presumptively entitled to costs as she was the successful party at the motion. The Court determined that the children should attend school in her area as she had suggested.

[5] She is seeking $12,237.32 being the partial indemnity costs to the date of her offer to settle and full indemnity thereafter as set out in her Bill of Costs.

[6] She indicates that the father’s offer contained in a letter dated March 6, 2020 from his counsel was not a Rule 18 offer to settle as it was not signed by the father. In addition, it dealt with an offer to finalize all the issues in the case. It was not severable in that the mother could not just accept the school issue without accepting the other terms dealing with custody and access on a final basis.

[7] The father refused to attend mediation despite the fact that it was mandated in the parties’ separation agreement.

Father’s Position

[8] The father submits that although the mother was successful on the motion, she is not entitled to costs.

[9] He submits that his proposal for the children’s school was very reasonable. He had proposed a school that would not require the children bussing to from and to school every day. They would have an adult parent at home after school and they would be attending the same school that is a Catholic school indicated that they were prepared to offer to settle the application on the following terms:

• Joint custody;
• Children would attend the schools proposed by the mother; and
• Access for Osker would continue as per the current schedule and Sophia would be 50/50 with each parent.

[10] The Father submits that even though he did not wish to attend mediation, counsel did proceed with negotiations.

[11] With respect to the amount claimed, the father indicates that it is excessive for a one issue motion that took less than 1 hour to argue. It includes preparation for cross-examinations which the mother did not proceed with and 4 hours to draft a bill of costs. The father only incurred $5005.00 (plus HST) which also included reviewing the issue of child support that was not a subject for the motion.

Legal Principles

[12] In Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625, the Court of Appeal confirmed the purposes of costs: (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 r. 2(2) of the FLRs.

[13] Subrule 24(1) of the FLRs 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 ONSC 330, [2000] O.J. No. 330 (S.C.). To determine whether a party has been successful, the Court should consider how the order compares to any settlement offers that were made. Lawson v. Lawson, 2008 ONSC 1978, [2008] O.J. No. 1978 (S.C.).

[14] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.

[15] One of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding.

[16] Family law litigants are responsible and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141.

[17] Subrule 24(5) states that the Court can consider whether a party was unreasonable in determining costs and s. 24(7) provides that the Court can also consider if the party was not properly prepared and the Court can award costs, unless it is not in the interests of justice.

Analysis

[18] Rule 24(1) of the FLRs provides that there is a presumption of costs if a party is successful in the motion.

[19] Firstly, I find that the mother was the successful party.

[20] The issue then is what quantum of costs should be awarded to the mother.

[21] I find that the father should have responded to the draft Order dealing with some of the terms dealing with education, such as contact information at the school, before the motion. He agreed to these terms at the hearing.

[22] However, I do not find that the father’s proposal for the school was unreasonable. The school was in his own area so that the children could walk together, they would be attending the same school and they would be attending a Catholic school as they had in the past. It was important to the parties that the children attend a school with Catholic education. The Court found that these were all laudable considerations when determining a school for the children.

[23] The lawyer’s rate of $395.00 per hour is reasonable given her level of experience in family law. She was called to the Bar in 1998 and practices extensively in family law. Ms. Smith’s rate of $200.00 per hour for a call to the bar in 2016 is also reasonable. I note that the law clerk’s rate is $150.00 per hour which I find high. There is no indication of her length of experience in family law. In addition, I note that her work involved email correspondence to set the date for the hearing and preparation of an affidavit of service and question whether this type of work warrants a rate of $150.00 per hour for a law clerk.

[24] The time spent by the mother’s counsel on record includes the preparation of a factum, exploring the assessment report dealing with the needs of the children.

[25] The issue of the children’s education was a very important decision but the issues were not complex.

[26] The mother’s offer to settle dated May 6, 2020, which was served in accordance with the FLRs demonstrated the mother’s attempt to resolve the matter without a hearing.

[27] Given the above considerations, the Court finds that a fair reasonable and proportionate award of costs is the amount of $3,000.00 to be paid by the father to the mother.

Justice A. Doyle Date: June 18, 2020