COURT FILE NO.: FC-19-2190
DATE: 2020-09-14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ilhan Hassan, Applicant
AND
Edwin Curtis Lloyd Jones, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Laura Pilon, Counsel for the Applicant
Aaron MacKenzie, Counsel for the Respondent
HEARD: By written submissions
COSTS endorsement
M. Smith J
[1] My endorsement on the Motion was released on June 29, 2020 (see Hassan v. Jones, 2020 ONSC 4007). The parties were invited to resolve the costs issue but were unable to do so.
[2] The Applicant Mother was the successful party. She seeks costs in the amount of $8,603.97.
[3] The Respondent Father submits that the request is excessive and unreasonable. He suggests that an appropriate amount of costs is $1,500.00, inclusive of H.S.T.
BACKGROUND
[4] On June 2, 2020, Justice Doyle granted the Mother’s request that her Motion be heard on an urgent basis. The issues to be dealt with at the Motion were: the child’s residency, access and the choice of school. The costs for determination of urgency was reserved to the Judge hearing the Motion.
[5] On June 8, 2020, the parties entered into Minutes of Settlement (the “Agreement”) on all issues, except the determination of the child’s school. Paragraph 6 of the Agreement provided the following: “Both parties will bear their own costs as it relates to the issues resolved in this [sic] minutes of settlement. Any costs related to determining the school Yasmine will be enrolled at may be sought by either party”.
[6] On June 29, 2020, I granted the Mother’s alternative request and ordered that Yasmine be enrolled at Robert Hopkins Public School (“Robert Hopkins”) in Gloucester, Ontario.
THE LAW
[7] Costs orders are at the discretion of the Court (see section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43). The framework in awarding costs is set out at Rule 24 of the Family Law Rules, O.Reg. 114/99 (the “FLR”).
[8] Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party. In setting the amount of costs, the Court shall consider the factors outlined in Rule 24(12) of the FLR.
[9] 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 subrule 2 (2) of the Family Law Rules (see Mattina v. Mattina, 2018 ONCA 867).
[10] Proportionality and reasonableness are the touchstone considerations that need to be applied when fixing an amount of costs (see Beaver v. Hill, 2018 ONCA 840).
[11] In exercising its discretion, the Court may take into account any written offers to settle, even if the offer does not meet the technical requirements of Rule 18(14) of the FLR (see Winiarz v. Anderson, 2020 ONCJ 238).
THE ANALYSIS
[12] The Mother was successful on the Motion as well as her request that it be heard on an urgent basis. She is presumptively entitled to her costs.
[13] The Father argues that the Mother has ignored the terms of the Agreement in respect to costs, namely that her request for costs should be limited to the issue of the choice of school. Further, he claims that there is duplication of work as a result of the Mother changing lawyers.
[14] I have reviewed the dockets for the Mother’s current counsel as well as her previous one. Both counsel each spent approximately 23 hours of time on this matter. The total amount of costs incurred, inclusive of disbursements and taxes is $11,603.97.
[15] Invariably, when new counsel is retained on a file, there will be some duplication of work. New counsel must review all materials, meet with the client and familiarize himself or herself with the facts and determine the steps that need to be taken with respect to the matter that is before the Court.
[16] In this case, the first counsel prepared an affidavit and factum which dealt with both the residence issue and the choice of school. The second counsel prepared a reply affidavit and factum on the determination of school. I found both affidavits useful at the Motion. A portion of the first factum was not relevant to the issues before me, while the second factum was pertinent.
[17] The Father also argues that the time spent is excessive. I disagree. I acknowledge that this issue was not complex, but it did involve assessing four possible schools and the consequences for each of these choices. Moreover, this matter was of extreme importance to the parties, and perhaps more so for the Mother, as the outcome of the Motion required her to relocate. The Mother proposes to reduce the account by $3,000.00. By applying this reduction, I find that this not only addresses the duplication of time issue, but it also complies with the terms of the Agreement. With the proposed decrease, the hours spent on this matter fall within the realm of being proportionate and reasonable.
[18] The Mother argues that the Court should consider the fact that she is a person of modest means. She relies upon her family for housing and cost of living. She argues that the Father is not paying child support. Litigation is expensive and it can have a direct impact on the children. I agree with my colleague’s comment in Snively v Gaudette, 2020 ONSC 3042 (par 43) that any legal fees paid will come out of the mouths of the children. The parties must, at every turn of litigation, consider their respective actions and the effect that it may have on the children, whether it be financial or otherwise. I therefore agree that it is a factor to consider when awarding costs.
[19] I have reviewed the Mother’s offers to settle that have been made. On May 22, 2020, as part of a global offer, the Mother proposed to move to the east end of the City and have Yasmine enrolled at Robert Hopkins. The offer also required that the Father move closer. Then, on June 5, 2020, the Mother offered, albeit it on a time limited basis (one day), that she was once again willing to relocate and have Yasmine enrolled at Robert Hopkins. The Mother achieved a result that was similar to what was offered. Based upon the materials before me, I find that the Mother made reasonable attempts to resolve this matter without the necessity of further litigation. It is another factor to consider, even if the Mother’s offers to settle did not strictly comply with Rule 18(14) of the FLR.
[20] Having regard to all the circumstances described above, I find that the Mother’s request is fair and reasonable. Accordingly, I order that the Father pay the Mother costs in the amount of $8,603.97, inclusive of disbursements and H.S.T.
M. Smith J
Released: September 14, 2020
COURT FILE NO.: FC-19-2190
DATE: 2020-09-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: Ilhan Hassan, Applicant
AND
Edwin Curtis Lloyd Jones, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COSTS endorsement
Justice Marc Smith
Released: September 14, 2020