Ziten Lyons v. Lyons , 2020 ONSC 4971

COURT FILE NO.: FC-19-1400

DATE: 20200820

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CATHERINE ZITEN LYONS, Applicant

AND

CHRISTOPHER JOSEPH DAVID LYONS, Respondent

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Mary Cybulski, Counsel for the Applicant

Michele D. Blais, for the Respondent

HEARD: In writing

costs endorsement

H.J. WIlliams, j.

1Success was divided on the motion and cross-motion to which this costs endorsement relates.

2I granted the father’s request for increased parenting time. I denied the father’s request that child support and s. 7 expenses be based on an average of his annual income for 2016, 2017 and 2018 rather than on his 2018 income; the father’s 2018 income was considerably higher than his income in the preceding two years.

3I denied the mother’s request for decision-making authority in respect of the health, education and daycare of the three children; I concluded that this issue would be properly decided by the trial judge. I granted the mother’s request that she be permitted to renew the children’s passports without the father’s signature.

The Father’s Position

4The father seeks partial indemnity costs of $32,285.16.

5The father argues that he was substantially successful on most issues and, in particular, the parenting time and decision-making authority issues, which he describes as the main issues. (I do not disagree with this characterization.)

6The father argues that he consented to many of the orders requested by the mother in her cross-motion.

7The father concedes that he may have acted unreasonably when, without the mother’s knowledge, he withdrew his authorization for the children’s passports. He says the mother acted equally unreasonably by denying his requests for additional time with the children.

8The father also argues that the offers to settle weigh in favour of his costs request.

The Mother’s Position

9The mother argues that the costs incurred by the father in respect of “a temporary motion on parenting time” were unreasonably high, particularly given that, at the time of the hearing, a parenting assessment was pending.

10The mother argues that, because of the father’s conduct and the divided success on the motion, no costs should be awarded. The mother asks that if any costs are payable, they be payable through an adjustment to the parties’ equalization calculation.

11The mother argues that there should be no costs in relation to a case conference before Engelking J., because the conference addressed a number of issues, including child support, Christmas access, the children’s passports and disclosure. The mother says that although Engelking J.’s endorsement granted leave for the father’s parenting time motion, leave was not required and was not opposed by the mother.

12The mother notes that she was successful on the issue of the father’s income, which she describes as complex; the mother argues that her success on this issue was of particular significance because, had she lost on this issue, she would be paying child support to the father, in light of the equal parenting time that was ordered.

13The mother argues that the father’s “bad behavior”, particularly in respect of the children’s passports, should not be rewarded and that a costs award in the father’s favour could only mean that the court considers the mother’s position on the access schedule to be significantly more unreasonable than the positions taken by the father in respect of the passports and his income and also his eleventh hour consents to a number of orders sought by the mother.

Analysis

14Costs awards are intended to serve four fundamental purposes:

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 under Rule 2(2) of the Family Law Rules. (Mattina v. Mattina, 2018 ONCA 867.)

15Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party.

16In exercising its discretion to order costs, the court is required to consider the factors set out in Rule 24(12) which are the following:

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.

17Ontario’s Court of Appeal recently underscored the importance of the principles of reasonableness and proportionality in the court’s exercise of discretion in respect of costs: Beaver v. Hill, 2018 ONCA 840.

The Parties’ Behaviour

18Turning first to the behaviour of the parties, neither party gets a gold star.

19The mother was steadfast in her unwillingness to consider additional parenting time for the father, even on an ad hoc basis, despite uncontradicted evidence that the father loves and has a close bond with the children, that the children had said they would like to spend more time with the father and that the father has a stable home environment and a flexible work schedule.

20I will not repeat here the comments in para. 14 of my March 26, 2020 endorsement about a litigation strategy employed by the mother intended to exclude relevant evidence about the father’s parenting.

21I also will not repeat the comments in para. 51 of my March 26, 2020 endorsement about the father’s conduct in respect of the children’s passports.

22There is no doubt that the conduct of each parent added unnecessarily to the cost and the tenor of the motion.

Time Spent

23With respect to the time spent by each party, the parties’ bills of costs, filed in conjunction with their costs submissions, indicate that the father’s legal team spent considerably more time than that of the mother. The mother’s lawyer and law clerk devoted 6.6 hours to the case conference before Engelking J. and 67.3 hours to the motion, including the questioning of the parties. The father’s legal team docketed 23.8 hours for the case conference and 138.6 hours for the motion, over twice as much time for each event.

Offers to Settle

24Both parties made offers to settle in the days leading up to the hearing of the motion. Offers to settle have been described as “the yardstick with which to measure success” and as being “significant both in considering liability and quantum.” (Osmar v. Osmar (2000) 2000 CanLII 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.J.))

25The mother’s offer of February 18, 2020 did not include any additional parenting time for the father. It provided for joint decision-making authority in respect of health-related matters, but gave the mother the final say if the parties did not agree. It offered to reduce the father’s child support payments to $1,500.00 from $1,700.00.

26The father made an offer on February 19, 2020. The father asked for Tuesday nights with the children plus alternating weekends from Thursday after school until Monday before school, which would have resulted in the children being with him six nights out of 14. The father asked for child support to be terminated altogether as of March 1, 2020 “as the parties’ incomes are relatively similar” and for the issues of retrospective and prospective child support to be dealt with at trial.

27The mother made a last offer the afternoon of February 26, 2020, less than 24 hours before the hearing of the motion. This offer gave the mother final decision-making authority in respect of the children’s major health decisions. It offered an alternative parenting arrangement, but less than equal parenting time. It provided for child support payments of $1,700.00 to continue on a without prejudice basis. Other issues would be left to the trial judge.

28Neither of the parties can say they obtained a result at the motion that was as favourable as or more favourable to them than the combined terms of an offer to settle they made.

Legal Fees

29The mother’s lawyer was called to the bar in 2012. Her hourly rate was $310.00 in 2019 and $345.00 in 2020. A law clerk assisted the mother’s lawyer. The law clerk’s hourly rate was $200.00 in 2019 and $215.00 in 2020.

30The father’s lawyer on the motion was called to the bar in 1992. Her hourly rate was $385.00. The father’s lawyer was assisted by a 2018 associate lawyer whose hourly rate was $180.00, an articling student whose hourly rate was $120.00 and a law clerk whose hourly rate was $100.00.

Discussion and Conclusion

31Where the court concludes that success was divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate, having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)).

32Although success on this motion was divided, I consider the father to have been the more successful of the two parties, both overall and on the primary issues. The parenting time and decision-making authority issues were the primary issues on the motion. At the hearing, only a small fraction of the parties’ oral submissions was devoted to the issue of the father’s income and the remaining issues. The father was entirely successful on the parenting time issue. The father was also successful on the decision-making authority issue, although the issue was not decided but rather deferred to trial. Although the amount of the father’s child support payments was significantly reduced because of the parties’ now-equal parenting time, I nonetheless consider the mother to have been successful on the issue of the father’s income, because I agreed with her position that the father’s 2018 income, and not a three-year average, should be considered for child support calculation purposes. The mother was also successful on the passport issue. The father was successful on the issue of whether the mother could have the children for 10 consecutive days over the summer.

33The court must step back and exercise a judgment, having regard to all the circumstances as to what a fair and reasonable amount should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant is. See: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON C.A.), (2004) 71 O.R. (3d) 291 (C.A.)

34The ultimate costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred for which reimbursement is sought and the importance or monetary value of the issues at stake. The rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: O’Brien v. O’Brien, 2017 ONSC 402.

35I consider the issues in this case to have been important, particularly the parenting time and decision-making authority issues; the best interests of three children were at stake. The issue of the father’s income was also important and also somewhat more complex.

36I have considered and commented on the behaviour of both parties. I have noted that neither party beat an offer they made.

37With respect to hours and legal fees, the costs outlines that were submitted by the parties in conjunction with their costs submissions indicated that the hours worked by the father’s legal team were considerably higher than those of the mother’s. The hourly rate charged by the mother’s lawyer suggested a scale higher than that of the father’s lawyer, given their relative years of experience.

38Having considered the divided success on the motion, the discrepancy between the time spent by the father’s lawyers and the mother’s lawyer, all of the other relevant factors and, in particular, the principles of reasonableness and proportionality, I have concluded that it would be fair and reasonable in the circumstances to order the mother to pay the father costs fixed at $18,000.00, an amount which is inclusive of disbursements and HST.

39Subject to agreement between the parties, the $18,000.00 shall be payable within 90 days.

40There shall be no costs in respect the case conference before Engelking J.