Court File and Parties

COURT FILE NO.: F713/19

DATE: January 28, 2020

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Laura Beth Wallace, applicant

AND:

David John Wallace, respondent

BEFORE: MITROW J.

COUNSEL: Erin L. Reid for the applicant

Trent A. Zimmerman for the respondent

HEARD: written submissions filed

ENDORSEMENT on costs

[1] I have reviewed both parties’ written costs submissions.

[2] The underlying order, giving rise to the costs submissions, was in relation to the applicant’s motion to determine whether this case should be heard in London or Welland.

[3] The applicant seeks $28,500.86 inclusive of HST and disbursements; of that amount, fees are just under $24,000.

[4] The applicant is entitled, presumptively, to her costs, as she was successful in her position that this proceeding should be heard in London, and not in Welland as argued by the respondent.

[5] The respondent submits that $6,500 costs is a reasonable amount for him to pay to the applicant, and he urges the court that payment of the costs should await the conclusion of the case.

[6] The parties and their four young children resided in Niagara Falls prior to separation. Paragraph 9 of the reasons on the motion (Wallace v. Wallace, 2019 ONSC 6257) states:

[9] Not in dispute is that the applicant, on separation and without notice to the respondent, moved with the four children to her parents’ residence in Mt. Brydges, a locality which is within the jurisdiction of the Family Court in London.

[7] I consider the factors and the reasonableness and proportionality of the factors listed in r. 24(12).

[8] I agree with the respondent’s submission that the time spent by the applicant’s lawyer was excessive when considering what the respondent, reasonably, should be expected to pay. The time spent by the respondent’s counsel was significantly less.

[9] The sole issue before the court was the geographic location where this case should be heard. There was no motion before the court dealing with parenting issues. The material filed, given the issue before the court, and as stated in the reasons, was “… far too voluminous …”: see reasons, paras. 4-5.

[10] While some evidence touching on parenting issues was necessary to provide context for the motion, the applicant’s material resembled an evidentiary record on a motion dealing with parenting issues, including where the children should reside on an interim basis.

[11] The foregoing is not intended in the least to be critical of the applicant’s counsel. The applicant is at liberty to instruct her counsel to expend significant resources to achieve the result sought by the applicant. However, where significant resources are dedicated to a file, then that is a matter between the client and his or her lawyer, and does not, per se, mean that the unsuccessful party should pay for it: see, for example, Furtney Estate v. Furtney, 2014 ONSC 2439, at para. 21.

[12] No offers to settle the motion were exchanged. The applicant submits that the motion involved one issue, that compromise was not possible and that the motion was not a situation that could have been settled in any practical way by serving an offer. The applicant relies on Beaver v. Hill, 2018 ONCA 840, where it was stated, at para. 15:

15 The motion judge also gave undue weight to the respondent's offer to settle, along with the appellant's failure to make an offer to settle. Although I accept that the presence or absence of offers to settle can properly be taken into account in fixing costs, it remains the fact that the appellant was not under any obligation to proffer an offer to settle. Further, before the absence of an offer to settle can properly be used against a party, the situation has to be one where it is realistic to expect offers to settle to be made. The case here was not a situation where the issues could have been settled in any practical way. Either the appellant was going to be able to proceed with his constitutional claim or he was not. There was no way of compromising on that central issue. Consequently, this was not a case where the presence or absence of offers to settle should have played any material role in determining the appropriate quantum of costs. [my emphasis]

[13] The case at bar can be distinguished from Beaver v. Hill as, in my view, some compromise could have been considered. For example, it would have been open to the parties to deal with the case in Welland through the various steps and then, if there was no settlement, to agree to transfer the case to London for a trial if the applicant and children still were residing in Mt. Brydges at that time.

[14] Also, the applicant seeks a quantum of costs that represents full recovery of the costs charged by her lawyer. Although full recovery of costs, if ordered, would have to be in an amount that is reasonable, the issue in this case is that the applicant, having submitted no offer, cannot claim the benefit of r. 18(14) where a party is entitled to full recovery of costs after the date of that party’s offer, unless the court orders otherwise.

[15] It is recognized that full recovery of costs is not precluded in situations where r. 18(14) does not apply. However, except in limited circumstances, for example as in Beaver v. Hill, supra, and except where the rules provide for a full recovery of costs, a party generally should not have an expectation of entitlement to full recovery of costs when that party has failed to make an offer to settle.

[16] In the present case, also relevant is r. 24(4):

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[17] Although a finding was made that the respondent had resiled from his demand that the applicant return with the children to Niagara Falls, the fact remains that the applicant, without notice, moved with the children from Niagara Falls to Mt. Brydges.

[18] That self-help conduct is serious and unreasonable and I take that conduct into account in reducing the costs that the applicant otherwise would have been entitled to.

[19] In the circumstances, I do not find unreasonable the respondent’s conduct in asking that the case be heard in Welland, although his verbally abusive email does constitute unreasonable conduct.

[20] While the respondent should not have commenced the proceeding in Welland, as concluded in the reasons, that fact did little, if anything, to add to the costs of the motion.

[21] I find myself in agreement with the respondent’s submission that $6,500 is an amount that is reasonable and proportionate when considering all the factors in r. 24(12)(a). Further, the applicant’s unilateral conduct in moving the children justifies, as requested by the respondent, that costs of the motion be paid at the conclusion of this case.

[22] I order that the respondent shall pay to the applicant her costs of the applicant’s motion fixed in the amount of $6,500 inclusive of HST and assessable disbursements, payable 30 days after the final disposition of this application, including appeals if any.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: January 28, 2020