Ontario Superior Court of Justice, Family Court (London)

COURT FILE NO.: F1546/18

DATE: 20201013

Applicant: Shanda Rae Wilson

Respondent: Edward Joseph Jurewicz

THIS REQUEST FOR COSTS HAVING BEEN HEARD IN WRITING, PURSUANT TO THE COURT’S ENDORSEMENT DATED SEPTEMBER 11, 2020.

DATE: October 13, 2020

APPEARANCES:

Genevieve M. Samuels, for the Applicant

Jennesa Plaine, for the Respondent

ENDORSEMENT - COSTS

Introduction

[1] This endorsement deals with cost issues relating to a motion brought by the Respondent and a cross-motion brought by the Applicant, both of which were heard by a video court session on September 11, 2020.

[2] At the conclusion of that hearing, I formally reserved my decision for a short time, prior to my completion of a typed endorsement later that day.

[3] For reasons set forth in that typed endorsement, I made an interim without prejudice order including provisions that:

a. confirmed an access schedule whereby the Respondent would have access with the parties’ two children on alternating week-ends, together with a midweek overnight access visit;

b. specified, (in what I expressly characterized as a first step in the exploration of ways to facilitate successful access transfers), a method by which access transfers were to take place at the children’s recently re-opened school, with additional terms and conditions designed to ensure, inter alia, that the Applicant would not be in the immediate vicinity of the girls when the access transfers were being made and that the Respondent’s new partner would be entitled to participate in such access transfers;

c. imposed time limits on the amount of time the children would be communicating with the Applicant by electronic and/or telephone communication during access visits between the children and the Respondent; and

d. imposed standard terms and conditions, applicable to both parties, to ensure that each parent would pursue a child-centred approach to custody and access issues, refrain from disparaging the other in the presence of the children, encourage the children to have a good relationship with both parents, and refrain from discussing adult issues with the children.

[4] This cost endorsement should be read together with that earlier endorsement, which included the setting of a timetable for the delivery of written submissions regarding costs.

[5] Pursuant to that timetable, the parties delivered the following material:

a. written cost submissions of the Respondent, dated September 21, 2020; and

b. written responding cost submissions of the Applicant, dated September 28, 2020.[^1]

[6] I now have had an opportunity to review and consider those written cost submissions and their various attachments.

Party positions

[7] The Respondent seeks costs on a full indemnity basis, fixed in the amount of $4,929.61, inclusive of disbursements and applicable HST. In that regard, the Respondent relies on considerations that include the following:

a. He submits that he was the successful party, and that he therefore is presumptively entitled to his costs of the motions.

b. He says that his efforts to resolve the matter co-operatively prior to the hearing of formal motions, (including his service of a settlement offer), were reasonable, and that the contrast between his pre-motion behaviour and that of the Applicant, (e.g., insofar as there were a number of indications that the Applicant seemed disinclined to promote access between the children, and refused to explore or even discuss alternative methods of access transfers while remaining focused on a complete suspension of access), justify an award of costs on a full indemnity basis.

c. He notes that, while both parties may have strayed beyond the parameters of permissible motion filings contemplated by the triage judge, the Applicant’s conduct in that regard was more egregious and less justifiable.

d. He asserts that the costs in respect of which he claims reimbursement were necessary and reasonable in the circumstances, and not excessive; e.g., insofar as they reflect no increase in Respondent counsel’s hourly rate, even though that might have been justified by the urgent nature of the motions.

[8] The Applicant says costs of the two motions should be reserved to the trial judge or, in the alternative, that such costs should be fixed in the all-inclusive amount of $500.00 and awarded “in the cause”. In that regard, the Applicant relies on considerations that include the following:

a. She says the “purported” success of the Respondent in relation to the motions is illusory, in that the resulting court order so far has not resulted in any successful access transfers. In her view, quantification of the costs of the motions and/or determination of the party to whom such costs should be awarded should be something decided by the trial judge, who will have the benefit of more “fulsome” and “better” evidence, and be “in a better position to evaluate the actual access of the parties’ positions” in this litigation.

b. She faults the Respondent for relying on hearsay evidence, and justifies the nature and extent of her motion material, (e.g., extensive exhibits including detailed third party accounts of access transfers provided by her aunt, and material offered as suggested evidence of the children’s views in relation to access), notwithstanding the limitations and restrictions by the triage judge, by assertions that she “could not properly defend herself against the totality of the Respondent’s allegations” without filing such material. She asserts, in particular, that sworn third party affidavits should have been permitted and considered notwithstanding the express prima facie restrictions in that regard imposed by the triage judge; e.g., noting that such restrictions necessarily were subject to the discretion of the judge presiding over the motions.

c. She relies on other authority from this court, (i.e., Justice Tobin’s decision in Martin v. Martin, 2019 ONSC 3446), dealing with an unsuccessful motion by a father alleging parental alienation and seeking interim custody, and an unsuccessful cross-motion by a mother seeking sole custody of the relevant children, in support of her position that this is not an appropriate case to award costs of the motions to either party.

d. She relies on the settlement offers exchanged by the parties in advance of the motions being heard. In that regard, her arguments include an assertion that the Respondent did not achieve a more successful outcome than that proposed in his offer, that the Respondent failed to accept any several portion of the Applicant’s settlement offer, and that the Respondent’s offer suggested that $500.00 would be an appropriate award of costs in the circumstances.

e. She argues that the costs sought by the Respondent are excessive and disproportionate. In that regard, the Applicant notes, for example:

i. that Respondent counsel, in the course of argument, characterized the relief being sought by the Respondent as “focused, limited and modest”, (insofar as the Respondent was focused primarily on narrow changes to the method of access transfers to facilitate their success), suggesting that costs of the motions should be modest as well;

ii. that far less expense was devoted to the motions by Applicant counsel; and

iii. that there may be questionable aspects of the costs sought by the Respondent insofar as there were two “Bill of Costs” documents, served on the Applicant, which progressively increased the amount of costs being sought by the Respondent.

[9] Before assessing the parties’ competing positions and arriving at an appropriate cost determination, I think it appropriate to note certain provisions and principles which govern such cost determinations.

Legal principles

[10] Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, and subject to the provisions of an Act or rules of court, “the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”. [Emphasis added.]

[11] Costs of matrimonial/family litigation such as this proceeding are governed primarily by Rule 24 of the Family Law Rules, O.Reg. 114/99, which reads in part as follows:

24. (1) SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS – There is a presumption that a successful party is entitled to the costs of a motion … . …

(4) SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY – 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.

(5) DECISION ON REASONABLENESS – In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(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.

(6) DIVIDED SUCCESS – If success in a step is divided, the court may apportion costs as appropriate. …

(8) BAD FAITH – If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. …

(10) DECIDING COSTS – Promptly after each step in the case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later stage in the case. …

(12) SETTING COSTS AMOUNTS – 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, [which includes, amongst other things, presumptive cost consequences when a party achieves a more successful outcome than certain extended settlement offers not accepted by another party],

(iv) any legal fees, including the number of lawyers and their rates; …

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[12] General principles relating to the application of Rule 24, reflected in reported decisions, include the following:

a. Although Rule 24 has circumscribed the court’s otherwise broad discretion in relation to cost matters, otherwise conferred or confirmed by s.131 of the Courts of Justice Act, supra, that discretion has not been completely removed. In particular, numerous factors, considered collectively, may rebut the presumption set forth in the rule, and otherwise move the court to exercise its residual discretion.[^2]

b. Rule 24 demands flexibility in examining the list of factors set out therein, without any assumptions about categories of costs. In that regard:

i. Judges are not constrained by the normal scales of costs contemplated by the Rules of Civil Procedure, and the traditional scales of partial indemnity and substantial indemnity costs are no longer the way to quantify costs in relation to proceedings governed by the Family Law Rules, supra;

ii. It nevertheless also is not true to say that costs in family law proceedings should generally approach full recovery, particularly insofar as a judge clearly has discretion to increase or decrease cost awards having regard to matters such as party conduct, the presence or absence of settlement offers, and the “touchstone” considerations of proportionality and reasonableness;

iii. A judge assessing costs under Rule 24 therefore effectively is permitted to consider a broad range of possible cost awards, from no costs or nominal costs to full recovery; and

iv. At the end of the day, cost awards in family law proceedings should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.[^3]

c. In relation to determinations of success or relative success:

i. There generally must be some unusual circumstance, gap or other good reason to warrant departure from the Rule 24 presumption that a successful party is entitled to his or her costs of the proceeding. The rule otherwise will come to have little meaning, and the exception will become the rule.[^4]

ii. However, while “success” is the starting point in cost determinations made pursuant to Rule 24, the Rule clearly contemplates and demands the consideration of other factors in arriving at a final just and appropriate cost award.[^5]

iii. “Divided success” does not necessarily mean “equal success”, and “some success” may not be enough to have an impact on cost determinations. Rule 24 requires a contextual analysis, which takes into account that most family law cases involve multiple issues, not all of which will be equally important, time-consuming or expensive to determine.[^6]

iv. Determinations of success are not governed by party positions set forth in pleadings, but by positions adopted and advocated at the time disputes are heard, if different from those set forth in pleadings.[^7]

v. Offers to settle are another useful “yardstick” by which to measure “success”.[^8]

d. In relation to determinations of reasonable and unreasonable behaviour:

i. A court’s view of reasonable litigation conduct is gauged over the totality of a proceeding, from the time a dispute arose to the time of hearing, and includes consideration of efforts throughout the dispute to find compromise and resolution.[^9] The court should not consider the reasonableness of conduct lying outside the time when the issues for which costs are being determined first arose.[^10]

ii. In looking at reasonableness, it accordingly is necessary to review and consider any offers to settle either party has or has not made. It is unreasonable behaviour for a party not to make an offer to settle.[^11]

e. In relation to determinations of “bad faith”:

i. The essence of bad faith is a representation that one’s actions are directed towards a particular goal while one’s secret goal is something else; something that is harmful to other persons affected or at least something they would not willingly support or tolerate if the truth had been known. However, not all bad faith involves an intent to deceive; for example, it may be demonstrated by failure to abide by agreements or court orders.[^12]

ii. However, conduct that is merely unreasonable, negligent or reflecting bad judgment must not be equated with bad faith conduct. Bad faith implies the conscious doing of something wrong because of some dishonest purpose or moral obliquity. It contemplates a state of mind affirmatively operating with furtive design or ill will.[^13]

iii. The bad faith must have occurred in relation to the issues in respect of which costs are being decided, from the time those issues arose, or be the direct and immediate cause of those issues.[^14]

Assessment

[13] With the above legislation, rule provisions and general principles in mind, I turn to determination of an appropriate cost award in this particular case, in relation to this particular motion.

[14] In my view, the Respondent was the successful party in relation to the two motions and is presumptively entitled to costs. Without limiting the generality of the foregoing:

a. The primary focus of the two motions was whether and how access visits should continue.

b. The precise relief ordered after hearing of the motions did not square entirely with that sought by the Respondent, making it difficult to say that he obtained a litigated result “as favourable or more favourable” than his settlement offer dated August 14, 2020. For example, the Respondent sought a broad order that the Applicant not be present during any access exchanges, which simply were to be conducted using the services of any third party agreed upon by the parties. The order I made was more targeted than that; e.g., insofar as it specified that access exchanges were to take place at the children’s school under certain specified conditions, albeit ones that include provisions designed to ensure that the Applicant would not be immediately present or visible to the children, notwithstanding the fact she works at their school.

c. The Respondent nevertheless did obtain an order that confirmed his right to access with the children at specified times and specified a method of access transfers that generally would take place in the Applicant’s absence, and he did so in the face of an attempt by the Applicant to obtain an order suspending the Respondent’s rights of child access altogether. Child access was the primary focus of the motion, and in my view the Respondent clearly was more successful than the Applicant in that regard, having regard to the positions adopted by the parties in relation to the two motions.

d. While there were additional aspects of relief ordered to promote child-centred parenting, and that relief also was sought by the Applicant, (who included terms of such relief in a severable portion of her offer to settle, which was not accepted by the Respondent), in my view that was a non-contentious and relatively minor aspect of the motions that received little focus or attention. I certainly do not think that consideration warrants any finding of “divided success” sufficient to undermine a conclusion that the Respondent was the successful party, as far as the motions are concerned.

e. In my view, the Applicant’s arguments that the Respondent was not “actually” or “truly” successful having regard to subsequent events, and/or that costs should be reserved to the trial judge because that judge will be able to determine “actual” or “true” success on a complete and fully tested evidentiary argument, are fundamentally misconceived and inappropriate. Without limiting the generality of the foregoing:

i. The reality is that courts necessarily are obliged to make determinations based on the evidence properly before them at the time a matter is heard and decided. Subject to any successful appeal of a judge’s order, relief ordered by a judge on an interim basis is deemed to be a correct determination of what interim relief was appropriate or not appropriate in the prevailing circumstances, based on the evidentiary record before that judge. Such interim orders do not become incorrect simply because subsequent events, and/or a further and better evidentiary record, may suggest and support the granting of modified or different relief at a later date in relation to the same or similar issues; e.g., when the court is called upon to make a final order/judgment at trial.

ii. The approach advocated by the Applicant would be inadvisable from a policy perspective, insofar as it would tend to undermine the fundamental purposes of modern cost awards; i.e., to partially indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants.[^15] For example:

1. Pursuant to the approach to costs advocated by the Applicant, one party could succeed time and time again in relation to a series of interim motions, necessitated by the other party’s intransigence in prolonged litigation, but fail to recover any interim reimbursement of litigation expense prior to trial. Such an approach would allow an unreasonable party to wage a successful litigious “war of attrition”, whereby a party adopting reasonable interim positions might nevertheless be forced to capitulate through exhaustion of his or her resources.

2. The approach essentially advocated by the Applicant, (i.e., “Wait and see what the final outcome at trial will be, because my position will be vindicated eventually”), would do little or nothing to encourage settlement of motions or broader litigation. To the contrary, each side would be encouraged to adhere to interim positions without compromise, in the firm but mistaken belief, (as opposing parties inherently cannot both be right), that an object court will share their views at the very end of the litigation. Moreover, the accumulation of costs awarded “in the cause”, or otherwise deferred to the trial judge, effectively would provide each side with a mounting financial incentive to press on for nothing less than determination of issues by the trial judge; i.e., in the hope of eventual reimbursement for associated mounting costs of litigation that have not been reimbursed after various incremental steps in the litigation.

3. In my view, the approach advocated by the Applicant, (i.e., whereby cost determinations would be made only with the benefit of hindsight, in light of subsequent events), also would tend to encourage inappropriate behaviour. This case provides a useful example. In particular:

a. My endorsement made it clear why, on the evidence before me, continued access between the Respondent and the children was presumed to be in the best interests of the children, and why the corresponding focus of the parties should be on ways to facilitate the success of access exchanges rather than a counter-productive determination to suspend all in-person access between the children and their father.

b. However, the Applicant suggests that “true” or “actual” success on the motions, and corresponding cost consequences, should be determined by reference to whether access exchanges taking place after the motions succeed or fail; i.e., with the Applicant then being able to argue, in the event of their failure, that her position on the motions has been vindicated by subsequent events.

c. Such an approach effectively would create a strong financial incentive for the Applicant to make her position on the motions a self-fulfilling prophesy; e.g., by adopting an approach or attitude that actively or passively fails to encourage access and successful access exchanges, and/or otherwise undermines the success of such exchanges.

d. In the result, aspects of the Applicant’s costs submissions essentially represent, in my view, a continued attempt to argue the substantive merits of the motions I have decided; i.e., by continued reliance on her assertion that access exchanges simply will not work.

iii. Such policy considerations no doubt underly the express direction, in Rule 24(10) of the Family Law Rules, that cost determinations are to be summarily considered “promptly after dealing with a step in a case”; i.e., as opposed to a direction that costs generally are to be considered and determined at the end of a case, once it has proceeded to trial. In that regard:

1. Although that sub-rule also confirms the ability of the court to expressly reserve a decision on costs for determination at a later stage in the case, the “wait and see what happens at trial” approach advocated by the Applicant clearly is not the general practice of our court.

2. Taken to its logical extremes, such an approach would favour no costs ever being awarded before trial, in relation to disputed interim custody and access orders, (which are all too common and prevalent in family law litigation), based on the inevitable possibility of a trial judge making different final determinations in relation to such issues.

[15] In my view, the Respondent, (who did make a settlement offer generally in line with a position largely vindicated by my decision), acted reasonably in relation to the issues raised by the motions. Nor do I think the Respondent adopted an inappropriate approach in the preparation of his motion material. Without limiting the generality of the foregoing, I certainly do not think the Respondent should be faulted for relying on hearsay evidence in circumstances where the triage judge expressly directed that neither party was to file or rely upon third party affidavits. While direct evidence provided by sworn third party affidavits is certainly preferable in normal circumstances, ignoring prevailing triage restrictions on such evidence in the current environment flies in the face of the practical time and other resource constraints our court is facing during the ongoing pandemic. It also undermines the unusual but necessary measures our court generally has adopted in an effort to function as best we can during the current and ongoing suspension of regular court operations.

[16] In contrast, for reasons noted in my earlier endorsement:

a. I think the Applicant acted unreasonably in relation to the issues raised by the motions. Without limiting the generality of the foregoing:

i. At the very least, her refusal to even discuss or consider alternative approaches to access exchanges, let alone explore or attempt such alternatives, suggested an uncompromising and inflexible attitude that was not child centred or solutions oriented, effectively making the bringing and full argument of these motions inevitable.

ii. In my view, the Applicant’s unreasoned refusal to permit the involvement of the Respondent’s new partner in access exchanges suggested a similar arbitrary and unreasonable approach to dispute resolution.

iii. However, as noted in my reasons, there also were further troubling indications, (e.g., failure to provide the Respondent with opportunities to enjoy access with the children when the Applicant was ill, failure to provide the Respondent with advance notice of his ability to attend at access exchanges, and facts suggesting the children’s views were being shaped by adult comments and interventions), that the Applicant generally was not being supportive of a continuing relationship between the children and their father.

b. I think the Applicant, (more than the Respondent, although he too exhibited such tendencies), unreasonably ignored the calls for restraint inherent in the prima facie restrictions placed on motion material by the triage judge in his endorsement.

[17] Having said all of that, I do not think the Applicant’s conduct amounted to “bad faith”, (as that term has been defined by the authorities noted above), and am reluctant to award costs on a full indemnity or “full recovery” basis; i.e., the basis employed to address such “bad faith” conduct, pursuant to Rule 24(8) of the Family Law Rules. Unless other circumstances of a particular case warrant a different approach, I think some differentiation generally should be made in cost awards made against parties who exhibit “bad faith” and those who do not, or there effectively would be little or no financial incentive for parties to refrain from engaging in bad faith conduct.

[18] I also have concerns about reasonable expectations and proportionality, when it comes to the costs sought by the Respondent. In that regard:

a. I am not persuaded by the Applicant’s suggestion that the Respondent’s recovery of costs should be constrained by Respondent counsel’s submission, during the course of argument, that the Respondent was seeking interim relief that was “focused, limited and modest”. In my view, such realities conversely underscore the unreasonable approach taken by the Applicant in opposing the granting of such “focused, limited and modest” relief. They also ignore the reality that the Applicant was intent, via her position and cross-motion, on suspending the Respondent’s rights of interim child access altogether. The issues raised by the motion accordingly were of great and understandable significance to the Respondent; i.e., in terms of preserving his right to interim child access, and looking for realistic ways in which that access might be facilitated by successful access exchanges.

b. Nor am I persuaded by the Applicant’s attempts to rely on the cost aspects of the Respondent’s settlement offer. In particular, the Respondent’s suggestion of a $500.00 cost award was made in the context of an offer to compromise and resolve the issues raised by the motions altogether, without the need for their being argued to a formal litigated conclusion. In my view, it is not appropriate to lift a proposed cost quantification out of that context, (a settlement offer proposing a global compromise that was not accepted), and suggest that it represents an appropriate award of costs in relation to motions that have been fully argued.

c. I also am not persuaded by the Applicant’s reliance on the decision of Justice Tobin in Martin v. Martin, supra, in support of the Applicant’s suggestion that it would be unreasonable and/or inappropriate to award costs in this case. As emphasized by the relevant legislative provisions dealing with costs, and numerous appellate authorities, costs are a highly discretionary and fact specific exercise. Cost determinations made in one specific context therefore rarely provide authoritative guidance on the appropriate cost determinations to be made in a different context, by a different judge, who has witnessed a different litigious exercise carried out by different parties. Moreover, I note that Justice Tobin’s expressed view of the case before him, in terms of it not being an appropriate one for an award of costs, was merely a preliminary view; i.e., expressly coupled with provision for written cost submissions if either party was inclined to seek costs.

d. I nevertheless am troubled by the clear indication, based on the bill of costs and docket entries filed with the written cost submissions made by Applicant counsel, that the time and expense devoted to the motion on behalf of the Applicant on a full indemnity basis, (i.e., $1,516.65), was significantly less than that devoted to the matter on behalf of the Respondent. In that regard:

i. Rule 24 of the Family Law Rules has no express counterpart to Rule 57.01(1)(0.b) of the Rules of Civil Procedure, which requires the court to consider, in the making of a cost award in relation to other civil litigation, “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed”.

ii. However, as noted above, Rule 24 of the Family Law Rules does contain express reference to the broader concepts of “reasonableness and proportionality”, and their great importance in making such cost determinations in the family law context. In my view, the cost expectations and practices of an unsuccessful party, reflected in the litigation expense that party incurred in addressing the same issues, are relevant and important considerations to be taken into account in assessing “reasonableness and proportionality”, and arriving at the court’s overall determination of what would be a fair and reasonable amount that should be paid by an unsuccessful party.

iii. In this case, the disparity between the time and expense incurred by each party, in relation to the motions, is more striking when one considers the volume of material prepared and relied upon by the Applicant in comparison to that prepared and relied upon the Respondent – although I appreciate that a sizeable portion of the Applicant’s material effectively was prepared by the Applicant’s aunt, rather than by Applicant counsel.

iv. I nevertheless also bear in mind that Respondent counsel was obliged to prepare not only initial motion material, but reply material that was more extensive than usual because of actions taken on behalf of the Applicant. For example:

1. the Respondent was obliged to address significantly expanded and more fundamental access issues raised in the Applicant’s responding material, such as the Applicant’s request for a complete formal suspension of interim child access;

2. the Respondent was obliged to address, if only as a precautionary measure, the extensive third-party accounts provided by the Applicant’s aunt, even though the filing of such material had been discouraged if not conclusively prohibited by the endorsement of the triage judge; and

3. the Respondent was obliged to address, if only as a similar precautionary measure, the issue of counselling which the triage judge expressly had characterized as a non-urgent issue, despite the Respondent’s initial request for its consideration.

e. In my view, Applicant counsel also was right to point out that the later Bill of Costs shared by Respondent counsel increased the amount of costs being sought by the Respondent in relation to the motions. In that regard, some of the discrepancy is clearly and expressly attributable to additional costs incurred by the Respondent in addressing the matter of costs. However, my cross-referencing of entries from the two Bill of Costs documents indicates that further preparation and meeting time, (relating to the date of the hearing on September 11, 2020), was inserted belatedly into the second Bill of Costs. In that regard, the “in office” meeting in respect of which time was docketed might relate to a meeting taking place after the motions were heard, but additional preparation for the motion cannot be explained in that manner, and the insertion of docket entries for earlier calendar dates, after preparation of an initial Bill of Costs, raises obvious questions about the accuracy of docketing practices and procedures.

Conclusion and order

[19] It has been emphasized many times and in many ways that cost determinations are more art than science.

[20] Having regard to all the circumstances, including the above considerations, I think justice will be done in this particular case if the Applicant is ordered to pay the Respondent costs of the motions fixed in the all-inclusive amount of $3,000.00, payable within 60 days.

[21] An order shall go accordingly.

Justice Ian F. Leach

Justice I.F. Leach

[^1]: While the timetable for written cost provisions permitted the optional filing of short written reply cost submissions from the Respondent, the Respondent apparently felt such a reply was unnecessary. Certainly, no such reply was brought to my attention in the week following the indicated deadline for the delivery of such written reply cost submissions.

[^2]: See M.(A.C.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 (C.A.).

[^3]: See Osmar v. Osmar, 2000 CanLII 20380 (ON SC), [2000] O.J. No. 2504 (S.C.J.); Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.); and Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412 (C.A.).

[^4]: See Feng v. Philips, 2006 CanLII 13769 (ON SC), [2006] O.J. No. 1708 (S.C.J.).

[^5]: See Reimer v. Appa, [2001] O.J. No. 1793 (S.C.J.).

[^6]: See Scipione v. Del Sordo, 2015 ONSC 5982, [2015] O.J. No. 5130 (S.C.J.).

[^7]: See F.I. v. S.P.P., [2012] O.J. No. 450 (S.C.J.); and Johnstone v. Locke, [2012] O.J. No. 1154 (S.C.J.).

[^8]: See Osmar v. Osmar, supra.

[^9]: See Y.(J.) v. F.(L.), [2017] O.J. No. 5228 (S.C.J.).

[^10]: See Caldwell v. Caldwell, [2007] O.J. No. 1057 (S.C.J.)

[^11]: See Fisher v. Fisher, [2015] O.J. No. 1532 (S.C.J.); and Palod v. MacDonald, [2018] O.J. No. 4180 (Prov.Ct.).

[^12]: See Ontario (Director Family Responsibility Office) v. Grant, 2003 CanLII 64323 (ON SC), [2003] O.J. No. 1931 (S.C.J.); Leonardo v. Meloche, 2003 CanLII 74500 (ON SC), [2003] O.J. No. 1969 (S.C.J.); S.(C.) v. S.(M.), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.), affirmed 2010 ONCA 196, [2010] O.J. No. 1064 (C.A.); J.S. v. M.M., [2016] O.J. No. 2404 (S.C.J.).

[^13]: See Hendry v. Martins, [2001] O.J. No. 1098 (S.C.J.); Nairn v. Lukowski, [2002] O.J. No. 5111 (S.C.J.); and Husein v. Chatoor, 2005 ONCJ 487, [2005] O.J. No. 5715 (S.C.J.).

[^14]: See Caldwell v. Caldwell, supra.

[^15]: See Serra v. Serra, supra.