Court File and Parties
Napanee Court File No.: 113/15 Date: 2020-10-06 Superior Court of Justice - Ontario
Re: Ashley Lynn Chevrier, Applicant (Mother) And: Brock Pierre Chevrier, Respondent (Father)
Before: Mr. Justice Timothy Minnema
Counsel: Lucienne MacLauchlan, for the Applicant S. Daniel Baldwin, for the Respondent
Heard: In Chambers (Written Submissions)
Costs Endorsement
Minnema, J.
[1] Following a successful motion for contempt, the respondent father is seeking “substantial indemnity” costs of $18,429.17 all inclusive. The applicant mother has not taken a clear position on what the amount of costs should be.
Law
[2] Following the amendments to Rule 24 of the Family Law Rules in July of 2018, the decisions in Beaver v. Hill, 2018 ONCA 840 and Mattina v. Mattina, 2018 ONCA 867 have clarified the law relating to costs in a family law proceeding. The excerpt below is from paragraphs 9, 10, and 12 to 15 from Mattina (citations and excerpts from the Family Law Rules omitted):
Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice …
This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: … Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly: … And Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.
Rule 24(1) creates a presumption of costs in favour of the successful party …
Consideration of success is the starting point in determining costs. This presumption does not, however, require that the successful party always be entitled to costs. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party.
Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs.
The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).
Rule 24(4) addresses the situation in which a successful party has behaved unreasonably.
Rule 24(5) provides guidance on how to evaluate reasonableness.
Rule 24(8) discusses the cost consequences for a party who has acted in bad faith.
[3] In assessing what is just, reasonable, and proportional, considerations may include the impact that the cost award will have on the party ordered to pay (Murray v. Murray (2005), 2005 CanLII 46626 (ON CA), 79 O.R. (3d) 147 (C.A.)) and its effect on the care, maintenance or interests of children (C.A.M. v. D.M. (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.)).
Analysis
Success
[4] The father’s motion for contempt was successful. He is therefore presumed to be entitled to costs.
Offers
[5] As noted, the requirements for an Offer to Settle that has direct cost consequences are set out in Rule 18. There were many formal offers made by both parties, more by the father. Some expired before the motion. For the most part the father received a better result than the offers that remained open. However, as noted, he is not seeking full recovery costs, which is what subrule 18(14) triggers. Per subrule 18(16), I have taken all offers into consideration, touched on further below.
Bad Faith
[6] The mother thought the father was raising bad faith, but he has clarified that he is not. There is no allegation of bad faith as a consideration in assessing costs.
Setting Costs Amounts: Subrule 24(12)
[7] As noted in subsection 24(12)(a), when setting the amount of costs the court is to consider the reasonableness and proportionality of each of the factors under the following general headings as they relate to the importance and complexity of the issues.
[8] I would observe that the motion was important to the parties, more so for the request to decide the short-term parenting schedule than for the contempt finding. The very nature of a contempt motion involves a level of complexity in view of its quasi-criminal nature, although the main parenting schedule issue was straight forward.
Behaviour
[9] The finding on the motion was that the mother behaved unreasonably in taking unilateral action in withholding the children. She made arguments related to the pandemic soon after the father had sent the children to her in B.C. in good faith during that very same pandemic. With the children in her care, the mother seemed to think she was negotiating from a position of strength. She failed to take the opportunities in the Offers to Settle that would have ended the conflict with her in a better position than what the court ordered. Whether it was a calculated decision or not, with her overholding the children she was able exercise her May access (four consecutive weeks) at her home in B.C. rather than, as was required by the Final Order, in Ontario.
Written Offers to Settle
[10] In assessing reasonableness, I would only add in addition to the above that both parties and the father in particular made significant efforts in writing to resolve the matter by agreement. The offers were somewhat difficult to compare to the result, because they involved make-up time, future access, and for the most part avoided the contempt finding and costs.
Time Spent by Each Party, Legal Fees and Rates, Expenses Incurred (Subrules 24(12)(a) (ii), (iv) to (vi))
[11] Both parties filed Bills of Costs which I have compared. The respondent’s is somewhat confusing. He sets out his costs calculated on a “substantial indemnity” basis without setting out the full costs. The term “substantial indemnity” is not found in the Family Law Rules, and although it is clear that the father is seeking something close to full indemnity, there is no way of determining how that was calculated. The mother’s Bill of Costs is considerably less than his. There was an error in her calculations, and her correct total fees were $8,010 plus HST of $1,041.30 for a total of $9,051.30. I would also note the following with respect to the some of the general differences:
(a) The mother’s lawyer (28-year call) indicated that she spent 26.7 hours (miscalculated as 24.9 hours) on this matter and that she charges her client $300 per hour. I would note, however, that the mother was without counsel from March 24 to May 21, 2020, during which time she corresponded and negotiated directly with the father’s lawyer.
(b) The father’s lawyer (6-year call) indicated that he spent 48.6 hours on this matter and that his substantial indemnity fee is $250/hour ($12,150). His Bill of Costs did not break down what portion of that related to settlement negotiations. Having said that, there was ample evidence of such discussions in the main motion materials and in the many formal and informal Offers to Settle produced.
(c) The father’s Bill also indicated 22.4 hours for a law clerk at $140 per hour on a substantial indemnity basis ($3,136).
(d) The mother’s Bill has no disbursements. The father’s were $1,155.99 including HST. He notes that included $442.32 to serve the mother personally in B.C., as was required.
Any Other Relevant Matter
[12] The mother argues that her ability to pay costs must be considered. She indicates that there was a high cost for the children to travel to her in August that was occasioned by my decision to have the children going into her care with little notice. However, she was asking that the children to be ordered into her care immediately, and under the order it occurred only several days later. Also, it was her actions that led to the court to impose a schedule that differed from the Final Order and that eliminated long-term planning and the opportunity to take advantage of ticket sales.
[13] The mother claims that she struggles financially and has had to borrow money for the airfare for access. However, that financial obligation was agreed to prior to this motion as reflected in the Final Order. Also, as the father points out, there is little in evidence about finances. He indicates that he also struggles financially, particularly as a result of the costs of this urgent motion which has required him to borrow funds. He further argues that he is the primary caregiver of the children and does not receive child support.
[14] The ability of parents to afford the costs of litigation is a concern in most cases. Here, the combined costs were in the $27,000 range. That money if saved would have gone a long way towards the children’s future education, travel, or other expenses, but it is too late for that. In not accepting the father’s offers, the mother increased the global overall legal fees by forcing the matter on to a hearing.
Analysis/Summary
[15] Referring to the fundamental purposes of the costs Rules noted above, the mother had many opportunities to settle the issues in a way that would have left her in a better position than the result on the motion, and she should have taken them. The father was clearly the successful litigant. The mother’s behaviour in deciding to withhold the children and refusing their timely return was unreasonable and perhaps opportunistic. There is no element of justice or fairness in this case that would lead to the conclusion that a substantial costs order in favour of the father is not appropriate.
[16] Not only was the father’s motion successful, but it was necessary. When he brought it, the mother was still overholding the children. By the time it was served, the bulk of his legal fees had already been incurred. While an argument could be made for full indemnity costs following a contempt finding, as noted the father is only seeking substantial indemnity. Given the mother’s own lawyer’s bill, the father’s disbursements, and the period of time when the father was paying counsel and the mother was not, she should have reasonably expected a substantial costs award. Still, looking at proportionality and reasonableness, overall the costs being sought seem somewhat on the high side for a two-hour motion, notwithstanding the significant negotiation efforts throughout to avoid it.
Decision
[17] The assessment of costs is not simply a mechanical exercise: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.) at para. 26. Having regard to the factors and considerations outlined above, I find that what is just and reasonable in the circumstances is an order that the applicant mother pay the respondent father’s costs of $11,000.00 inclusive of HST and disbursements.
Mr. Justice Timothy Minnema
Date: October 6, 2020