COURT FILE NO.: FC-20-191
DATE: 20200902
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TYLER CHARRON
Applicant
– and –
CRYSTALL ANN HOLLAHAN
Respondent
Self-represented
Adrienne Curran, for the Respondent
HEARD: In writing
DECISION ON COSTS
Audet J.
[1] On July 20, 2020, I rendered my decision on a motion brought by the parties to determine which school their child would be enrolled in come September 2020. The respondent mother was the successful party on the motion. The parties were invited to provide me with written submissions if they were unable to agree on the issue of costs. Having now received those submissions, this is my decision on costs.
Position of the Parties
[2] The mother seeks a cost order on a substantial indemnity basis from April 6, 2020 until June 23, 2020, the date of her Offer to Settle, and on a full indemnity basis thereafter, in the amount of $7,915.09 (inclusive of disbursements and HST). These include the costs of the “mini-case conference” held on this issue on May 15, 2020, before Justice M. Smith (costs of this step in the case were reserved for the motion’s judge). To support her position on costs, the mother relies on her success in the motion and on the Offer to Settle she made on June 23, 2020, which mirrored the order made.
[3] The father (now self-represented in the context of these cost submissions) does not dispute the mother’s entitlement to costs as the successful party. However, he submits that he has made very reasonable offers to settle well before the motion was brought, which should be taken into account, and he seeks “some sort of reprieve” in light of the legal fees he had to pay his own lawyer for these two steps in the case ($37,260.94).
Analysis
[4] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under sub-rule 2(2) of the Family Law Rules, O. Reg. 114/99 ("the rules") (Mattina v. Mattina, 2018 ONCA 867, 2018 CarswellOnt 17838 (Ont. C.A.)).
[5] Sub-rule 24(1) creates a presumption of costs in favour of the successful party. There is no dispute here that the mother was the successful party. As such, she is presumptively entitled to her costs on a partial indemnity basis.
[6] While both parties argue that the other acted unreasonably, I do not find that any evidence of behavior that would meet the high evidentiary threshold required to establish unreasonableness.
[7] Sub-rule 18 (14) provides that a party who makes an offer is entitled to costs to the date the offer was served and full recovery costs from that date, if all the conditions set out therein are met. While the father argues that he has made several attempts to settle this case well before the motion was brought, the only offer he attached to his submissions is one he made well after my decision was rendered on the issue of the child’s schooling.
[8] It is not disputed that the mother’s offer does indeed mirror the order that I made, and that it meets all the conditions set out in sub-rule 18(14). However, when the dispute centers around a narrow single issue such as the choice of a school for a child (or a parent’s request to relocate with a child), which is very “black and white” in nature, I am of the view that offers to settle, which usually mirror the parties “full win” positions, are often not indicative of a true intent to compromise. Even if the terms of subrule 18(14) are met, the court still has the discretion not to order full recovery costs (C.A.M v. D.M. (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181). In my view, this is one of those cases where the court’s use of its discretion not to order full recovery costs would be appropriate.
[9] Pursuant to sub-rule 24(12), the court must also consider the following factors when assessing costs:
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 paid or payable; and
(b) any other relevant matter.
[10] The father’s main argument to support his position that an award of costs should not be made against him is that his ability to pay such an award is considerably reduced as a result of the significant legal fees he had to pay his own lawyer for the case conference and motion. As stated earlier, the father was charged over $37,000 by his own lawyer for the same steps completed in this case by the mother’s lawyer for under $10,000. If nothing else, it establishes that the mother’s counsel’s legal fees are more than fair and reasonable considering the importance of the issue in dispute and its level of complexity.
[11] However, the fact that the father ends up with significant legal expenses to pay is not a factor that I am prepared to take into consideration in assessing his liability for the costs incurred by the mother as the successful party. As argued by the mother’s counsel, if the father is dissatisfied with the amount of legal fees he was charged, this is a matter between the father and his own counsel, and one for which the father has a recourse under the Solicitor’s Act, R.S.O. 1990, c. S.15. Just like a party’s limited financial circumstances cannot be used as a shield against any liability for costs, a party’s own choice of counsel and litigation strategy, which results in an alleged inability to pay, cannot be used as a shield against a cost award either.
[12] Having regard to all the above, I find that an award of costs in the amount of $5,000 is fair and reasonable in the circumstances. These costs are payable forthwith.
Madam Justice Julie Audet
Released: September 2, 2020
COURT FILE NO.: FC-20-191
DATE: 20200902
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TYLER CHARRON
Applicant
– and –
CRYSTALL ANN HOLLAHAN
Respondent
decision on costs
Audet J.
Released: September 2, 2020