Overview

1This cost award is in respect of the Applicant’s motion heard on December 10, 2019. Written reasons for decision were released on December 17, 2019 (the “Decision”). The Applicant (“the Mother”) sought various relief including: interim sole custody of the parties’ three children with access to the Respondent (“the Father”) on terms suggested by the Mother, child support, the appointment of the Office of the Children’s Lawyer (the “OCL”), and the sale of the matrimonial home and of a jointly-owned investment property.

2Most of the contested relief claimed by the Mother was granted. The Decision also included orders made on consent namely, an order naming the listing agent to be used to sell the real property and an order requesting the appointment of the OCL.

3The Father’s cross-motion was dismissed. Among other relief, the Father had sought sole custody of the children and an order that the Mother’s access be supervised. In the Decision, costs of the Father’s cross-motion were fixed at $3,000.00 and payable by him to the Mother.

Positions of Parties

4The Mother seeks her costs in respect of her motion in the amount of $3,745.70. This figure is comprised of fees and H.S.T. of $3,717.70 and disbursements of $28.00 for courier fees incurred to serve her motion materials.

5The fees claimed by the Mother are calculated using her lawyer’s hourly rate of $350.00, multiplied by 9.4 hours. The Mother’s lawyer was called to the Bar in 1979.

6The time charged by the Mother’s lawyer includes one hour for the court appearance of November 29, 2019. In respect of that court appearance, the Mother’s Bill of Costs states: “Affidavit of Respondent dated November 18/19 not filed, thus the matter could not proceed”.

7The Father also filed a Bill of Costs and brief written costs submissions. His Bill of Costs sets out a total of 70 hours: ten hours for review of the Mother’s materials and 60 hours spent to prepare motion materials, a statement of law and book of authorities, respondent’s affidavit, and case conference brief. The case conference is not the subject of this cost award.

8The hourly rate charged by the Father’s lawyer is $275.00. The Father claims costs at the partial indemnity rate of $165.00, based on 60% of $275.00. The Father lists disbursements totalling $643.00 comprised of copying $98.00, binding and tabs $120.00, faxes $25.00, and “travelling to and fro” $400.00. The Father does not explain how he arrived at the figure of $400.00 for travelling.

9In his written costs submissions, the Father asserts that the November 19, 2019 court attendance was a “futile trip”, made necessary because the Mother had attempted to serve her materials by email, after the Father’s lawyer had made it known that he was instructed not to accept email service because the total documents were more than 70 pages and his client “is unwilling to pay to print them”.

10Based on those submissions, it appears that, rather than to absorb the printing cost, or to ask for an order that the Father recover the cost of printing the Mother’s materials, [1] the Father instructed his lawyer to appear on the return of the motion in Brantford and to then seek an adjournment of the motion on the basis that service was not effected in accordance with the Family Law Rules, O.Reg.114/99, as am. (the “FLR”). Presumably, the $400.00 disbursement identified in the Father’s Bill of Costs for “travelling to and fro” included the November 29, 2019 trip made by the Father’s lawyer from his Toronto law office to the Brantford Court House.

11The endorsement of Broad J., dated November 29, 2019, makes no reference to the late delivery of the Mother’s materials as a reason for the adjournment to December 10, 2019 of the parties’ motions. Similarly, the endorsement does not mention that an adjournment was required because the Father’s affidavit of November 18, 2019 had not been filed in a timely way. [2] The endorsement does state that the two motions were to be heard together as a long motion, which could explain the adjournment to a long motions list.

12As the endorsement of Broad J. does not contain a reason for the adjournment of the motions, I am unable to conclude that adjournment was caused by a default on the part of the Mother or the Father.

Factors

13The factors to be considered when fixing costs are set out in r. 24 of the FLR, include that the successful party is presumed to be entitled to costs; the reasonableness of the behaviour of each party; any offer to settle; any acts of bad faith by any party; the importance, complexity or difficulty of the matter; the scale of costs, hourly rates and time spent; and the reasonable expectations of the losing party.

14The purpose of modern costs awards is: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. Fong v. Chan, 46 O.R. (3d) 330 (“Fong”); Serra v. Serra, 2009 ONCA 395.

Success

15In this case, the Mother was more successful than the Father. The Mother sought and was granted the following orders: (1) the dismissal of the Father’s motion; (2) that primary residence of the parties’ three children be with her; (3) sole custody of the children to the Mother; (4) ongoing Guideline child support, retroactive to February 2, 2019; and (5) the proportionate sharing of the children’s section 7 expenses. As mentioned, other orders were made on consent.

Complexity and Importance

16The issues were of ordinary complexity.

Unreasonable Behaviour or Bad Faith

17The Father’s accusations against the Mother as set out in his affidavits on the motions were inflammatory, harmful, and lacking in credibility. Moreover, as set out in the Decision, I concluded that the Father, himself, did not believe his own allegations.

18I consider the Father’s use of surveillance drones and a secret recording device he installed in the family car to obtain evidence to be used in the Father’s affidavit to be unreasonable and deserving of costs sanctions.

19Lastly, at the hearing, the Father’s lawyer held up a baggie of what he advised the court were illegal drugs provided to him by the Father, who claimed to have taken them from the Mother. Counsel asked the court to accept that the untested and unidentified contents of the baggie was “evidence” that should be considered on the motions. Not only was this baggie of unidentified contents with an uncertain chain of custody of no probative value, attempting to use it in the course of submissions on the motions was unreasonable and entirely inappropriate.

20As stated Fong (at para. 22), costs may be ordered or withheld as a means of controlling behaviour by discouraging frivolous suits or unmeritorious defences, and as a way of sanctioning unnecessary steps in litigation, as well as misconduct by litigants or their counsel. The foregoing paragraphs outline examples of such misconduct.

Scale of Costs

21In this case, I find that the Father has acted in bad faith and behaved unreasonably in the conduct of the litigation. In determining the appropriate scale of costs, I also take into account the offer to settle made by the Mother in her lawyer’s letter of September 4, 2019. For those reasons, I find that costs on a substantial indemnity scale to be appropriate.

Hourly rates, Time Spent and Proportionality

22The parties’ Bills of Costs assist me in determining the reasonableness of the hourly rates and time spent. While the Mother’s lawyer’s hourly rate is higher than the Father’s lawyer, the latter is a 2016 Call whereas the former is very senior counsel and, as such, I find the Mother’s lawyer’s hourly rate of $350.00 to be reasonable.

23Comparing the times recorded in the parties’ Bills of Costs also assists me to determine that the time spent by the Mother’s lawyer is reasonable.

24Finally, given the importance to the parties of the issues raised, I conclude that the fees and disbursements claimed by the Mother are proportionate.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

25The Father’s Bill of Costs shows (full indemnity) legal fees of $22,479.00, the bulk of which appears to relate to the motions. I therefore conclude that the Father would reasonably expect to pay the amount claimed by the Mother in respect of her motion.

Disposition

26For the reasons set out above, I order the Father to pay the Mother’s costs of her motion fixed at $3,373.93 inclusive of fees, disbursements, and H.S.T.

27As the Mother’s motion sought, in part, an order for child support, these costs are to be added to the support to be enforced by the Family Responsibility Office.

28A support deduction order shall issue.

Sheard J.

Released: January 22, 2020

1Rule 6 (13) of the Family Law Rules provides that, unless the parties consent or the court orders, service by fax is limited to a maximum of 20 pages; r. 6 (2) of the FLR, provides that service by email may only be carried out if the person consents or the court so orders.

2As noted in the Decision, as at December 10, 2019, the Father’s affidavit of November 18, 2019 had still not been filed in the Continuing Record.