Court File and Parties

COURT FILE NO.: FS-19-14506 DATE: 20200806 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ASHLEIGH IRENE SEMKIW, Applicant AND: AUSTIN GILES SUTHERLAND, Respondent

BEFORE: C. Horkins J.

COUNSEL: Gary S. Joseph and David Rappaport, for the Applicant Ursula Cebulak, for the Respondent

HEARD: at Toronto in writing

Reasons for Decisions - Costs

[1] The parties have not been able to settle costs since the release of my decision dated July 2, 2020 (2020 ONSC 4088).

[2] There were two motions before the court. The main motion was brought by the applicant mother. The father brought a responding motion that requested terms if the mother was successful.

[3] The mother was not successful. Her motion was dismissed.

[4] I fixed the summer parenting schedule that would apply if the mother decided to remain in Toronto and ordered that she would not remove the children from Canada during her parenting time. If the mother decided not to return to Toronto, I ordered that the children shall reside with the father pending a further court order.

[5] The father was successful and is entitled to costs. He seeks full recovery costs for two reasons: the mother acted in bad faith and the result of the motions exceeded his offer to settle.

[6] The father’s full recovery costs and HST total $9,505 plus disbursements of $56.50 for a total of $9,561.50.

[7] The mother argues that the father was not entirely successful on his motion and should not be entitled to full recovery. It is her position that the costs of the motions should be “in the cause” and decided when her application is finally determined. Her application seeks an order allowing her to relocate the children to live with her in Texas.

[8] If costs are ordered, the mother says that $3,000 all-inclusive is a reasonable amount.

Legal Framework

[9] The Family Law Rules, O. Reg. 114/99 are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867.

[10] Pursuant to rule 24(1) there is a presumption that a successful party is entitled to costs. This presumption is subject to the factors in rule 24(12) that the court “shall consider” in “setting the amount of costs” as follows:

(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 paid or payable; and

(b) any other relevant matter.

[11] As this rule states, proportionality and reasonableness are the “touchstone considerations” to be applied when fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840 at para. 12.

[12] In deciding if a party reasonably or unreasonably, rule 24(5) states that the court shall examine the following:

(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.

[13] Finally, the Family Law Rules expressly contemplate that a party shall receive full recovery costs in specific circumstances: when a party has acted in bad faith - rule 24(8) and when a party has beat an offer to settle - rule 18(14).

Analysis

[14] The motions were very important to the father and of moderate complexity.

[15] The mother’s motion ignored the Separation Agreement that the parties negotiated and signed in October 2018. That Separation Agreement set out a parenting schedule that covered the entire year.

[16] The Separation Agreement also required the parties to mediate a parenting dispute and move to binding arbitration if mediation failed. By bringing her motion, the mother ignored the Separation Agreement.

[17] The Separation Agreement requires the parties to maintain a permanent residence in Toronto until October 2025. The mother has not complied with this residence requirement. Instead, she is moving to Texas where she has bought a home. She no longer has a Toronto residence.

[18] During this parenting dispute, the mother’s behaviour has been unreasonable. The parenting dispute arose because of her unilateral decision to permanently move to Texas in June. She is expecting a child with her new partner and decided to give birth to the child in Texas. This created the urgent parenting problem because she wanted the children to be with her in Texas when the child was born.

[19] The mother’s demand that the children be with her in Texas for the birth, required the children to stay in Texas for a period of time beyond what the Separation Agreement allows. It also required the children to cross a border closed to non-essential travel and travel to Texas, a state experiencing substantial increases in COVID-19.

[20] I found that her proposed travel “would recklessly expose the children to the risk of infection”. Her conduct revealed a “complete disregard for the Separation Agreement” that was binding on the parties.

[21] The mother refused the father’s request to follow the Separation Agreement and resolve the parenting dispute through mediation. Given the mother’s refusal, the father agreed to have the motion heard in court because of the urgent need to settle the summer schedule. His concerns with the mother’s motion and her actions were set out in detail in the June 4, 2020 letter. The mother unreasonably ignored the father’s legitimate concerns. Instead, she went ahead with her motion and lost.

[22] While the mother’s conduct was clearly unreasonable, it does not rise to the level of bad faith.

[23] The mother served an offer to settle dated June 21, 2020, two days before the hearing of the motions. At this late date, after motion materials had been served and considerable expense incurred, the mother offered to have the motion issues decided by arbitration. Her offer to settle required each party to bear their own costs. The offer to settle had to be accepted within 24 hours. The offer was unreasonable and was not accepted.

[24] The father served a detailed offer to settle on June 19, 2020. This offer remained open during the hearing of the motions. In summary, the offer allowed the mother to have parenting time with the children in Texas for 24 days with conditions. If by July 10, 2020, there was a material change in the status of the COVID-19 virus that would impact the safety of the children travelling to Texas, and if the parties could not agree on whether the travel should occur, the dispute would be arbitrated. The mother did not accept this offer.

[25] The father’s result on the motions was better than his offer and the mother’s offer. I ordered that the children could not travel to Texas because of the COVID-19 virus.

[26] I reject the mother’s position that the father was not completely successful. There is no basis for this argument. The mother’s motion was dismissed, and the father succeeded in securing terms for the summer schedule.

[27] The mother relies on her actions after release of the motion decision. At this point she agreed to withdraw her mobility/relocation application and follow the Separation Agreement, if the father agreed to withdraw his request for costs. An agreement was not reached.

[28] The mother seeks to avoid costs or reduce the amount by pointing to her willingness to now follow the Separation Agreement. In fact, she is not following the Separation Agreement because she no longer has a residence in Toronto.

[29] Her post-decision actions however framed, should not shield her from the father’s costs. Her unreasonable conduct resulted in the costly motions and the father is entitled to costs.

[30] The fees of the losing party are often a good indicator of what is reasonable. The mother’s counsel has provided a Bill of Costs that shows fees, HST and disbursements as follows:

• $6,976.62 (partial indemnity)
• $9,294.56 (substantial indemnity)
• $11,616.40 (full recovery)

[31] The mother’s Bill of Costs supports the reasonableness of the lower fees incurred by the respondent’s counsel. Further, her Bill of Costs reveals the unreasonableness of her position that the father’s costs should be fixed at $3,000 all inclusive.

[32] The father is entitled to costs on a full recovery basis from the date of his offer forward. Most of his costs were incurred before his offer to settle. Taking this into account and the mother’s unreasonable conduct, I fix the father’s costs of the motions at $6,500 inclusive of fees, HST and disbursements. This is fair and reasonable in the circumstances.

[33] The mother shall pay the father his costs of the motions fixed at $6,500.

Date: August 6, 2020