COURT FILE NO.: FS-20-00015295 DATE: 20200617 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sari Herman, Applicant AND: David Kideckel, Respondent
BEFORE: Nishikawa J.
COUNSEL: Jaret Moldaver and Stephanie Yuen, for the Applicant/Responding Party Serena Lein, for the Respondent/Moving Party
HEARD: In writing
Costs ENDORSEMENT
Overview
[1] On April 2, 2020, I granted the Respondent’s motion for an order resuming parenting time with the parties’ daughter, O. (11 years old), as provided in the parties’ Parenting Separation Agreement dated July 28, 2014 (the “Agreement”) varied by the final order of J. Wilson J. dated May 15, 2017 (the “Order”): 2020 ONSC 2021.
[2] The Applicant sought certain relief and conditions in the event that access was to be resumed but did not bring a cross-motion.
[3] Both parties seek their costs on the basis that they were the successful party. The Respondent seeks full indemnity costs of $5,288.38, including disbursements and HST. The Applicant seeks partial indemnity costs of $8,477.22, including disbursements and HST.
Analysis
Applicable Principles
[4] The overall objective in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher v. Public Accountants Council of Ontario, [2004] O.J. No. 2634 (C.A.), at para. 24. There is a presumption that the successful party will be entitled to costs: r. 24(1), Family Law Rules, O. Reg. 114/99.
[5] The Court of Appeal has identified the four fundamental purposes that modern cost rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[6] The exercise of judicial discretion in awarding costs is guided by Rule 24 of the Family Law Rules, both in terms of the entitlement of a party to an award of costs as well as to the quantum of that award. The considerations in determining the appropriate quantum of a costs award are found in Rule 24(12), which reads 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) and 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 expense properly paid or payable; and (b) any other relevant matter.
[7] In assessing the success of a party, the court looks to the positions taken by the parties at trial, Berta v. Berta, 2015 ONCA 918, at para. 102, as well as to the offers to settle exchanged by the parties as compared with the terms of the final order: Lawson v. Lawson, [2008] O.J. No. 1978 (Sup. Ct.).
[8] Rule 18(14) provides that, unless the court orders otherwise, a party is entitled to costs to the date the offer was served and full recovery of costs from that date subject to certain conditions being met. One of the terms to be met is that the party who made the offer must have obtained an order that is as favourable or more favourable than the offer. To trigger the potential of full recovery costs pursuant to 18(14) a party must do as well or better than all of the terms of an offer (or a severable section of an offer). See Chomos v. Hamilton, 2016 ONSC 6232, at para. 19. The onus of proving that the offer made was more favourable than the result at trial rests with the person claiming the benefit of full recovery costs. See Rule 18(15).
[9] Rule 24(8) of the Family Law Rules provides that the court “shall decide costs on a full recovery basis” if a party has acted in bad faith. Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See Chomos v. Hamilton, 2016 ONSC 6232, at para. 43.
[10] Other than as provided in Rules 24(8) or 18(14) there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, at para 11.
Disposition
[11] Applying the above principles to the circumstances of this case, the Respondent was the successful party on the motion, which was necessitated by the Applicant’s refusal to comply with the terms of the Order. The fact that additional terms were ordered to avoid further disagreement between the parties does not render the Applicant the successful party.
[12] I am not satisfied, however, that the Respondent is entitled to full indemnity costs for the motion or after the date of his offer to settle. First, the Respondent has not met the high threshold for establishing bad faith on the part of the Applicant. While I found that the Applicant failed to comply with the Order, I do not find such non-compliance to have been in bad faith, given the current exceptional circumstances. See: Martorelli v. Martorelli, 2019 ONSC 6536, at para. 7. Second, the Respondent was not more successful than all the terms of his offer to settle, which included additional terms that were not addressed at the hearing. In any event, since the offer to settle was served a day before the hearing, costs on a full indemnity basis from that date would not result in a significant difference.
[13] The Respondent’s costs on a partial indemnity basis are $2,896.79, not including the preparation of cost submissions, for which the Respondent seeks $500. The amount is reasonable and proportionate, especially considering the urgency with which the motion was brought.
[14] Based on the foregoing, the Applicant is ordered to pay the Respondent’s costs in the amount of $3,000, all-inclusive.
[15] This endorsement is an order of the court enforceable by law from the moment it is released.