Court File and Parties

COURT FILE NO.: FC-12-FS005094 DATE: 2020/07/02 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Justin Norris Karen Dosanjh for the Applicant Applicant

• and -

Lisa Anne Morocco Respondent Fay Ann Guilbeault for the Respondent

The Honourable Justice N. Gregson

Endorsement on Costs

Overview

[1] On October 25, 2017, the mother commenced a Motion to Change the final order of Justice K. Carpenter-Gunn dated July 31, 2015.

[2] On February 13, 2018, the father filed his Response to the mother’s Motion to Change and asked the court to make changes of his own.

[3] Both parents sought some changes to the terms of the final order. They also sought further amended changes at the time of trial which was not specified in their original pleadings due to the passage of time. The failure of properly plead claims is not always fatal to a party’s ability to ask the court to grant relief later in the case or at the trial. See M.P.A.N. v. J.N. 2019 ONCJ 96 (Ont. Ct.) para. 29. I dealt with all issues identified as of the date of trial, regardless if the issue was raised in the pleadings.

[4] After hearing ten days of trial evidence spanning from November 21, 2019 to February 26, 2020, I released my Reasons for Judgment on April 21, 2020. I further indicated in my Reasons that if either party wished to seek costs from the other, they were to serve and file written submissions as per specified timelines.

[5] Written submissions were received regarding the issue of costs. Both parties seek costs from the other. Both parties feel they were the successful party at trial.

[6] The mother feels she was at least 80% successful at trial and seeks reimbursement of her trial fees, disbursements and HST in the amount of $23,882.86. This amount is based on substantial indemnity (full recovery) and represents her legal fees incurred as of the date of her Offer to Settle dated November 8, 2019.

[7] The father feels he was largely successful at trial and seeks reimbursement for his legal fees, disbursements and HST in the amount of $76,732.00. This amount is based on partial indemnity and represents legal fees for trial. His total trial legal fees and HST total the sum of $94,383.25. His disbursements total the sum of $5,945.26.

[8] The father claimed the mother’s Motion to Change was an attempt to diminish his parenting time with the children as the mother wished to reduce his access from three weekends per month to two weekends per month. He also argued the mother had been dishonest in hiding the fact she had not returned to shiftwork and breached the final order by not providing her yearly work schedule to him as court ordered. As a result, the mother had manipulated the access schedule for two years. The father submits the mother acted unreasonably and demonstrated bad faith as a result of her actions.

[9] The mother argued she was compelled to commence a Motion to Change the final order in an effort to solidify the father’s access times with the children as the terms of the order required clarification and interpretation. The lack of specificity had caused conflict between the parties, police involvement and the involvement of Family and Children’s Services of the Niagara Region. The mother submitted the claims made by the father also suggested a reduction of her time with the children.

[10] It is not at all surprising that each of these litigants believe they are the successful party. In fact, I made the following comments at paragraphs 43 and 44 of my Reasons for Judgment:

[43] This court proceeding is as a result of continuous difficulties between the parents in interpreting their final order which was granted after a multi-day trial. In fact, the original court application commenced in 2012. Accordingly, the parents have been in conflict over the parenting of their children for over seven years. The parties’ children are currently eight and nine years of age.

[44] I heard trial evidence in this matter over a period of 10 days. The parents are hopeful that I can rectify the ambiguity in the final order and make some changes to the terms to reduce their conflict. Unfortunately, regardless of what I order, I expect one of the parents will find fault with the new parenting terms. These parents have not been able to set aside their differences for the sake and best interests of their children. In my view, both these parents have acted unreasonably at different periods of time over the years. In many ways, their behaviour is quite similar. Each has attempted to manipulate the terms of the final order to increase their parenting time with the children to the detriment of the other parent and the children. They have both actively and knowingly participated in the chaos which has ensued since the final order. Some examples of their misguided behaviour is as follows:

• The mother not providing her work schedule;
• The mother misleading the father and not advising him that she was not working shiftwork;
• The mother creating the yearly access schedule for the years 2015 to 2017 and choosing her monthly weekends associated with P.D. days and statutory holidays;
• The father’s belief he was entitled to all P.D. days and statutory holidays;
• The father not providing advance notice to the mother that he was unhappy with her proposed schedule and on occasion contacting police to enforce what he believed to be the terms of the final order;
• Both parties regularly contacting police (both the York and Niagara detachments) to enforce the terms of the final order;
• Both parties speaking negatively about the other to the children;
• The mother or someone in her household speaking to the children about finances;
• The father not returning the children after access forcing the mother to attend to pick them up on the basis he had no funds for gas;
• The father withholding the children after access;
• The mother not providing the children for access;
• The father not providing annual financial disclosure;
• Difficulties with telephone calls; and
• Difficulties with communication.

[11] I also made the following further comments about the parties at paragraph 48 of my Reasons for Judgment:

[48] In my opinion, the final order was well drafted. Reasonable parents would have had no difficulties in interpreting same. Unfortunately, each party interprets the terms of the order through their own lens, in a manner which benefits themselves.

The Parties’ Positions at Trial and Outcome

[12] The father sought to include further terms to a paragraph dealing with communication which had a negative inference towards the mother. The mother agreed to the terms but sought to have the clause be mutual. I concurred with the mother on this issue.

[13] The father sought to change the mode of communication from using a communication log to the use of an App. The mother sought no changes. I concurred with the mother on this issue.

[14] The father sought to change telephone access. The mother wished to have no changes. Due to the ongoing conflict this was causing the parties, I concurred with the father and reduced the amount of telephone calls for each parent.

[15] Initially there was an issue with the father having direct communication with professionals involved with the children. This became a moot point at the time of trial as the issue was resolved. In my view, both parties could have rectified this issue themselves long ago.

[16] The father was to have the children for three weekends per month which included any P.D. day or Statutory Holiday that fell adjacent to his weekend while the mother would enjoy one weekend per month when she was not working. The father sought to have the 1st three consecutive weekends of each month. The mother preferred for the father to exercise access two weekends per month. In the alternative, if the father continued to have three weekends per month, the mother preferred for him to have the 1st, 3rd and 4th weekend of each month. Considering the father had been having specified access to the children for the first three weekends of each month for two years as a result of a temporary order, I agreed he should continue to do so. The mother would enjoy the children on the 4th weekend of each month. There was no reason to reduce the father’s parenting time from three weekends to two weekends per month. The father was successful in maintaining his three weekends of access per month. I also agreed with him that he should simply continue to enjoy access during the first three weekends per month.

[17] It was absolutely necessary to specify which weekends of the month the father and mother would enjoy, to reduce discord.

[18] However, I did agree with the mother that she should be entitled to have the children in her care if there was a fifth weekend during the month as well as any P.D. day or Statutory Holiday which fell adjacent to her weekend time.

[19] A main dispute between the parties was whether it was the intention of the final order to have holidays override the regular access schedule. The father felt that it did not, while the mother’s position was that it did. As a result of the parties’ dispute over this issue, it led to years of conflict and police enforcement. I disagreed with the father on this issue and also disagreed that he should be guaranteed his three weekends of access per month despite the holiday schedule. Accordingly, the mother was successful on this issue.

[20] The difficulty with the summer vacation was as a result of the final order stipulating that each of the parents would be entitled to two weeks of vacation time in each of the months of July and August. Since each of these months have more than 28 days, it led to disputes between the parties. This was easily rectified as I simply divided the time equally for the months of July and August between the parents. The father however wished to have the division occur from the last day of the children’s school year in June through to the Labour Day weekend in September. I disagreed with the father on this issue as I felt if that had been the intention of Justice Carpenter-Gunn she would have done so. There was no need to make any further adjustments. The mother was successful on this issue.

[21] When Justice Carpenter-Gunn granted her final order she clearly wanted each of the parents to equally share the Christmas School Vacation/Holiday. The sharing she implemented in 2015 worked perfectly. However, since the children’s school holiday changes every year it meant that over the preceding years the parents were not equally sharing the Christmas holidays. The mother preferred to simply leave the existing language of the prior final order while the father sought to rectify this discrepancy. I agreed with the father and he was successful on this issue.

[22] The mother agreed the provisions of Mother’s Day and Father’s Day should remain as outlined in the final order. The father preferred to make a change to Mother’s Day as he essentially wanted the mother to have her weekend of access with the children during the Mother’s Day weekend. The father felt it was unfair for the mother to have her monthly weekend of access and the extra day for Mother’s Day which would impede his weekend of access during the month of May. I agreed with the mother on this issue and she was the successful party.

[23] The next issue was March Break. The parties could not agree on the interpretation of the word “midpoint” in the final order which allowed for the exchange of the children half way through their March Break. The father suggested it should be noon while the mother felt it was 5:00 p.m. I agreed with the mother on this issue and she was the successful party.

[24] The parties had over the years and by way of temporary court orders made changes to the issue of transportation. By the time of the trial, the father was picking up the children at the start of his access directly from their school at 3:00 p.m. and the mother was retrieving the children from the father’s residence in Newmarket at the end of the visit at 6:00 p.m. The final order had set out the exchange of access to be at 5:00 p.m.

[25] The father wanted to maintain the current interim status quo while the mother wanted the father to pick up the children from her residence rather than school and at 5:00 p.m. and for her to retrieve the children at 5:00 p.m. rather than 6:00 p.m. There was mixed success on this issue. I agreed the father should continue to pick up the children at school at 3:00 p.m. but agreed the mother should retrieve the children from the father’s care at 5:00 p.m.

[26] Both parents wished to continue police enforcement for access purposes and accordingly this term was maintained as per the prior final order.

[27] The father had involuntarily lost his employment in November 2018 and as a result his income changed in 2019. Both parties agreed the issue of child support had to be reviewed and addressed.

[28] It should be noted the father had not complied with the final order by providing the mother with annual financial disclosure. This was only supplied to the mother after her Motion to Change was commenced. Eventually, the parties were able to make the necessary calculations and agreed to a consent order to fix the arrears of child support which were owed to the mother. These were fully paid by the father.

[29] The father agreed he should be imputed a gross annual income of $30,000.00 based on minimum wage as of March 1, 2019 when his income ceased from his employer. The mother sought to impute the father an income of $55,000.00 considering the father had previously been earning the sum of $80,000.00 and it did not appear the father was proactively pursuing other employment. Despite same, I agreed with the father’s position considering it had only been one year since his income had ceased and as a result of new implications with COVID-19 (although COVID-19 was not raised during the trial as it pre-dated March 2020 when the pandemic was declared). I concurred with the father’s position regarding his imputation of income. He was the successful party on this issue.

[30] The father sought to remove portions of the language dealing with section 7 Special and Extraordinary Expenses while the mother sought no changes. I agreed with the mother on this issue and made no changes.

[31] Initially the father noted the mother was not providing the children’s health cards as per the final order. This issue was rectified before the end of the trial as the mother provided notarized copies to the father. Again, this issue should have been rectified long ago by the parties.

[32] The parties consented to adding a further term dealing with Thanksgiving and I agreed to include same. I disagreed with both of their suggestions regarding the times of exchange and implemented the time I chose for the usual calendar year to provide consistency. I would state both parties were successful on this issue.

[33] The mother wished to ensure she had the children during Gabriel’s First Communion and wanted something specified in the new order. The father objected to same and felt they could agree for him to return the children on time to the care of the mother for Gabriel’s First Communion. Due to the conflict and dispute in the past dealing with Sophia’s First Communion, I acceded to the mother’s request with some fine tuning. She was successful on this issue.

[34] In regard to the issue of make-up time, I combined both of the parties’ respective proposals with some further fine tuning. Both were successful.

[35] Lastly, the father wished to include other holidays in the new order which had not been mentioned in the prior final order. The mother wanted no further additions. I concurred with the mother on this issue.

[36] Considering what each party was seeking at trial and what I ultimately ordered, I feel there was mixed trial success. Although the mother may have had successes on more issues, the father had success on the more substantive issues.

Authorities

[37] The court has a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended. Subsection 131(1) sets out the following specific principles regarding costs:

131 (1) (a) The costs of a case are in the discretion of the court; (b) The court may determine by whom costs shall be paid; and (c) The court may determine to what extent the costs shall be paid.

[38] Rule 24 of the Family Law Rules (hereinafter referred to as “FLR”) provides a framework for awarding costs in family law cases.

[39] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at paragraph 10, reaffirmed modern costs rules are designed to foster the following fundamental purposes:

(1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants.

[40] Rule 2(2) of the FLR adds a fourth purpose, namely: “(4) to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules.”

[41] Costs awards are discretionary. Two important principles in exercising this discretion are reasonableness and proportionality. See Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.). The Ontario Court of Appeal noted it was an error in law to apply full recovery of costs unless a finding was made to support such an award. The FLR only expressly contemplates full recovery of costs in specific circumstances such as where a party has behaved unreasonably, in bad faith or has exceeded an Offer to Settle under Rule 18(14) of the FLR.

[42] In assessing reasonableness and proportionality of costs, the Court of Appeal in Snelgrove v. Kelly, 2017 ONSC 4625 at paragraph 31 noted the following factors to be considered:

32. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.
33. Costs need to be proportional to the issues and amounts in question and the outcome of the case.
34. Amounts actually incurred by the successful litigant are not determinative.
35. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

[43] There is a statutory presumption as per Rule 24(1) of the FLR that a successful party is entitled to their costs.

[44] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made and the position each party took at trial should also be examined. See Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ).

[45] Rule 24(4) of the FLR states that despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.

[46] Rule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor to determine quantum as per Rule 24(12)) which reads as follows:

24(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (a) The party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) The reasonableness of any offer the party made; and (c) Any offer the party withdrew or failed to accept.

[47] Rule 24(6) of the Family Law Rules states that if success in a step in a case is divided, the court may apportion costs as appropriate. Divided success does not equate with equal success. It requires a comparative analysis. As was noted in Jackson v. Mayerle, 2016 ONSC 1556 at paragraph 66, most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine.

[48] Rule 24(8) further states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[49] An award of costs is subject to Rule 24(11) of the FLR which provides a list of factors a court should consider in dealing with costs as follows:

24(11) (a) The importance, complexity or difficulty of the issues; (b) The reasonableness or unreasonableness of each party's behaviour in the case; (c) The lawyer's rates; (d) The time properly spent on the case, including conversations between the lawyer and the party, drafting documents and correspondence, attempts to settle, preparation, hearing, argument and preparation and signature of the order; (e) Expenses properly paid or payable; and (f) Any other relevant matter.

[50] In determining the issue of costs, the court must also consider the factors set out in Rule 24(12) of the FLR which states 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) any 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 expenses properly payable; and (b) any other relevant matter.

[51] As per Berta v. Berta, 2015 ONCA 918 at paragraph 94, the Ontario Court of Appeal noted an award of costs is subject to the factors listed in Rule 24(12), Rule 24(4), Rule 24(8) and Rule 18(14).

[52] Rule 18(14) of the FLR states the following regarding Offers to Settle:

18 (14) COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer related to a motion, it is made at least one day before the motion date.
2. 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.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[53] The court has a discretion to take into account any written Offer to Settle, the date it was made and its terms, even if Rule 18(14) does not apply, when exercising its discretion over costs. (Rule 18(16)).

[54] As was noted by Justice S.E.J. Paull in L.M.L. v. S.L.G. [2019] O.J. No. 3267 (SCJ) at paragraphs 17-19:

The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842 (SCJ). Close is not good enough to attract the costs consequences of 18(14). The offer must be as good as or more favourable than the trial result. However, even if the offer does not attract the costs consequences set out in Rule 18(14), it may be considered under Rule 18(16). Gurley v. Gurley, 2013 ONCJ 482. The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. Wilson v. Kovalev, 2016 ONSC 163.

Parties’ Offer to Settle

[55] Both parties argued the final order granted on April 21, 2020 was favourable to their respective Offers to Settle they submitted to each other.

[56] The Applicant father provided a total of six Offers to Settle over the course of these proceedings. Each Offer to Settle provided the Respondent mother with the ability to accept the parts she agreed with in parts, without having her to accept the parts she did not agree with.

[57] Counsel for the father submitted that had the mother agreed to some of the parts of the Offers to Settle she was in agreement with, it would have narrowed down the issues extensively which would not have warranted a 10-day trial as only the issues which were not accepted would have been litigated.

[58] Counsel for the father argued that despite this clause being a part of every Offer to Settle, the mother refused to accept any parts of any offers, despite agreeing to them and offering the same part in her offers. Counsel for the father stated the mother wanted all or nothing accepted in her offers. As a result, the father did not have the ability to accept the mother’s Offer to Settle in part.

[59] After reviewing the Offers to Settle, it appears to me the parents could have agreed to some of the minor issues in dispute. The more contentious issues remained unresolved. Therefore, in my view, the evidence would not have necessarily been shortened by narrowing the issues despite the fact this is encouraged by the court.

Father’s Offer to Settle

[60] Having reviewed the father’s multiple Offers to Settle I believe that over the course of time, his offers became progressively more palatable for the mother’s consideration. His best Offer to Settle for the mother’s consideration was his last one dated November 22, 2019 which essentially recommended the following settlement and could be accepted in parts:

[61] The father sought to delete paragraph six of the final order which would terminate the daily telephone calls to the children.

[62] The father provided an Offer to Settle dated November 22, 2019. Pursuant to the offer, the father would continue to enjoy weekend access but during the 1st three weekends of every month from Friday after school until Sunday at 6:00 p.m.

[63] The mother would have access on the 4th weekend of each month. In the event of a 5th month, it would be exercised on an alternating basis.

[64] The father agreed holidays would override the regular access schedules but also included Family Day, Victoria Day and Labour Day weekends.

[65] The father agreed to a midpoint of Wednesday at 6:00 p.m. for March Break.

[66] In regard to child support, he sought to impute his income at $30,000.00 and to pay the sum of $459.00 per month as of February 1, 2019. He agreed to notify the mother within 10 days of obtaining employment.

[67] The father agreed the mother would have the children for the weekend of Gabriel’s Communion so long as he received make up time.

[68] In regard to the summer vacation, the father agreed to equally share the months of July and August (commencing June 30 and ending September 1).

[69] The father sought to share Thanksgiving weekend on an alternating basis.

Mother’s Offer to Settle

[70] The mother’s Offer to Settle just prior to trial is dated November 8, 2019 and essentially stated the following:

[71] The daily telephone calls to the children which was deleted by temporary order of June 27, 2019 shall be reinstated.

[72] The father’s weekend of access would be 3 weekends per month from Friday at 5:00 p.m. to Sunday at 5:00 p.m. to be exercised on the 1st, 3rd and 4th weekend per month. If not specified in the order, the father would enjoy the P.D. day or Statutory Holiday which falls on the Monday adjacent to his weekend. If those holidays fall on the Friday, the mother would enjoy the day until 5:00 p.m.

[73] The mother would have access for the 2nd and 5th weekends of the month.

[74] The holiday schedule will override the regular parenting schedule.

[75] The parents will continue to have four weeks of access during the summer months (July and August) with the exchange taking place on the 1st and 15th of those months on an alternating yearly basis.

[76] Christmas Holiday, Father’s Day, Mother’s Day and Easter to remain the same as in the final order.

[77] The midpoint of March Break shall be on the Wednesday at 5:00 p.m.

[78] Family Day, Thanksgiving, Victoria Day and Labour Day would be shared on an alternating yearly basis.

[79] The mother would have the children for Gabriel’s First Communion and the father would have make up time on another weekend.

[80] The mother sought to have the father pick up the children from her residence on Fridays at 5:00 p.m.

[81] The mother agreed to impute income in the amount of $30,000.00 and to have the father pay child support of $459.00 per month commencing December 1, 2019.

[82] The mother sought a standard income reporting clause.

[83] The mother sought to have the s. 7 and daycare clauses remain as per the final order.

Bill of Costs

[84] Each party submitted their Bill of Costs. The father’s legal counsel, Ms. Dosanjh stated she had 15 years of legal experience. She charges $650.00 per hour (or $487.50 on a 75% partial recovery basis). Her law clerk charges $175.00 per hour (or $131.25 on a 75% partial recovery basis).

[85] Counsel for the mother, Ms. Guilbeault took issue with the above-noted hourly rates and feels they are unreasonable and excessive.

[86] Ms. Guilbeault further noted the 80 hours of time Ms. Dosanjh claims for her attendance at the 10-day trial and 45 hours of preparation time was unreasonable as not all trial days were of an 8-hour duration. It was unclear whether Ms. Dosanjh included her travel time from Mississauga to Welland in her attendance fee as there is no breakdown of her time. Neither counsel provided a detailed account of their time. Ms. Dosanjh did include a disbursement of $876.20 for travel and mileage.

[87] Ms. Guilbeault noted she had 17 years of legal experience and charges $300.00 per hour. She charged 51.6 hours for trial attendance and 11.3 hours for trial preparation. There were no fees for her law clerk included.

[88] Although Ms. Dosanjh’s hourly rate seems rather high considering Ms. Guilbeault’s hourly rate, I have no evidence before me to suggest Ms. Dosanjh’s hourly rate is excessive given that her practice is in Mississauga rather than in the Niagara Region.

[89] Ms. Guilbeault also indicated in her submissions the father had not yet paid all of the court costs ordered of him to the mother at the initial trial in 2015. There is still the sum of $42,150.67 owing from the trial and a further $4,000.00 in costs payable by the father to the mother for an appeal. Ms. Guilbeault further argued that her client did not have the means to pay any court costs.

[90] Ms. Dosanjh felt Ms. Guilbeault raised the issue of prior court costs owed by the father to the mother in an attempt to dissuade the court in now ordering costs against the mother. Ms. Dosanjh noted that although the father was not financially stable in 2015, he was ordered to pay court costs of $58,000.00 on a partial indemnity basis to the mother. Moreover, Ms. Dosanjh felt the mother had the ability to pay court costs since the mother is employed full-time with the Ontario Provincial Police, rents out her prior residence and resides with her parents.

[91] Despite the fact the father still owes court costs to the mother from the initial trial in 2015, I do not feel this should have an impact on my decision for costs owing for the trial I heard. It simply demonstrates two parents who have not been able to put their differences aside for the sake of their children for years. Rather, they have spent thousands of dollars in legal fees which could have been provided to their children in the future.

Analysis

Importance, complexity or difficulty of the issues

[92] The issues at trial were important to the parties but were not necessarily complex and difficult. In my view, there were bona fide issues in dispute between the parties that required judicial intervention.

The reasonableness or unreasonableness of each party’s behaviour in the case

[93] I concluded in my Reasons for Judgment that both parties behaved unreasonably.

[94] The father alleges the mother behaved unreasonably and acted in bad faith. Frankly, both parties have demonstrated varying degrees of unreasonableness and bad faith since the granting of the 2015 final order, to the detriment of their children.

[95] As I previously stated, the mother withheld information about her returning to work and failed to provide her work schedule as per the 2015 final order. As a result, she provided a school calendar to the father for a period of two years and chose most of the weekends for herself which had a P.D. day or Statutory Holiday.

[96] The father took no action when the mother provided him with the yearly school calendar outlining their respective parenting times. Rather, when the time came, if the father felt he was entitled to the time with the children, he would simply not return the children to the mother which necessitated police involvement.

[97] There was a time when the mother was not providing the children to the father for his access based on the children’s alleged behaviours. Eventually, the court intervened and insisted the access to the father resume. The court ordered court costs against the mother for her actions at that time.

[98] There were also other mean-spirited actions taken by the father which were unreasonable which included: difficulties with telephone calls, not returning the children on the basis of lack of gas, lack of cooperation and communication and purposefully delivering the children late on Mother’s Day.

[99] Moreover, the father had not provided the mother with annual financial disclosure as per the final order until the litigation was commenced.

Lawyer’s Rates/Expenses Properly Paid

[100] I reviewed the Bill of Costs and take no issue with the legal hourly rates. The hourly rate for Ms. Dosanjh’s law clerk of $175 per hour also appeared to be reasonable.

[101] Although I agree there is a disparity in the hourly legal rate between the two counsel, without evidence, I cannot concur that Ms. Dosanjh’s hourly rate for a family law practice out of Mississauga is excessive.

[102] I rely on the comments noted by Justice Zisman at paragraph 25 in Livisianos v. Liadis 2016 ONCJ 465 as follows:

25. It is submitted by father’s counsel that the courts routinely apply the Costs Sub-Committee guidelines. In the case of Ganie v. Ganie [2015 ONSC 2997 (SCJ)] Justice Price considered the guidelines as a starting point and readjusted the 2005 rates for inflation. He found that appropriate hourly rates would be $93.00 for a law clerk, $265.00 for counsel with less than 10 years experience, $350 for counsel with 10 to 20 years experience and $410 for counsel with over 20 years experience. The Family Law Rules do not set any hourly rate but leave the court discretion to consider if the hourly rates for counsel are reasonable. Although the cost bulletin rates, as adjusted, are instructive they are not binding. Based on my experience it is not unusual for experienced family lawyers in this jurisdiction to charge hourly rates of $400 to $500 or even more. Family law litigation is expensive and where there is so much at stake litigants seek out the most experienced counsel they can find, despite their high hourly rate. I do not find that the hourly rate charged by mother’s counsel in the circumstances of this case to be unreasonable.

Time properly spent on the case

[103] I take no objection with the accounting for the time spent on this matter including fees, taxes and disbursements although I would have preferred a more detailed time docket. Although Ms. Dosanjh did charge 8-hour days for each court day, I have no idea whether some of that time may have been spent with her client.

[104] I rely on Justice Feldman’s comments in Tri-S Investments Ltd. V. Vong [1991] O.J. No. 2292 which stated:

I do not view it to be the court’s function when fixing costs to second-guess successful counsel on the amount of time that should or could have been spent to achieve the same result, unless the time spent is so grossly excessive as to be obvious overkill.

[105] Although the amount of legal fees may appear to be high, it is not up to me to second guess the time spent by experienced legal counsel.

Any other relevant matter

[106] Parties and their lawyers have a positive obligation to move cases forward to resolution as per Rule 2 of the Family Law Rules. This includes Offers to Settle to promote settlement or narrowing issues in dispute. To determine whether a party has been successful, the court should take into consideration how the order compares to any offers made. See Lawson v. Lawson, 2008 CarswellOnt 2819.

[107] Upon my review of the Offers to Settle, I have concluded the father received a favourable outcome from the court on most of the substantive issues as compared to what the mother was willing to settle for. In particular, this included his weekends of access taking place during the 1st three weekends of the month with pick up occurring at the children’s school on Fridays or 3:00 p.m. He was also successful on the imputation of income.

[108] As was noted by Justice Zisman in Livisianos v. Liadis, supra, at paragraph 13:

13. I am also mindful that the court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Council (Ontario) (2004), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

[109] As noted in Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (Ont. C.A.), determining the quantum of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.

[110] Accordingly, the ability to pay by the unsuccessful litigant is only relevant to the issue of the quantum of costs, not the liability for costs. See LeVan v. LeVan, [2006] O.J. No. 1552 (Ont. S.C.J.).

[111] There is no evidence to suggest the mother does not have the ability to pay court costs considering she is employed full-time.

[112] In Serra v. Serra 2009 ONCA 395, the Ontario Court of Appeal stated that modern costs rules are designed to foster three fundamental purposes, namely:

To partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the award should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party (emphasis added).

[113] I have reviewed and considered the parties written submissions. I have considered the above-noted authorities. Taking into account the father’s favourable Offer to Settle, the principle of proportionality and bearing in mind some of his unreasonable behaviour, I am granting a reduced amount of the Applicant’s claim for costs in the amount of $37,406.00 inclusive of H.S.T. This represents 1/3 of his legal fees ($31,461.00) plus his disbursements of $5,945.26 which I feel is an appropriate quantum considering all of the factors.

Order

[114] The Respondent mother shall pay the sum of $37,406.00 to the Applicant father in court costs payable within 30 days.

[115] As most of the trial evidence was not related to the issue of child support but rather access issues, I am not making the above award enforceable by the Family Responsibility Office.

Gregson J. Date: July 2, 2020