Court File and Parties
COURT FILE NO.: FC-19-2086
DATE: 2020/10/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TRACY PARE (VILLENEUVE), Applicant
-and-
JASON LEBLANC, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Rebecca E. Rosenstock, Counsel for the Applicant Respondent is self-represented Allison Lendor, for the Office of the Children’s Lawyer
HEARD: In writing
COSTS ENDORSEMENT
(Respondent’s Urgent Motion re Custody and Access)
Corthorn J.
Introduction
[1] The parties were before the court on July 31, 2020 on the father’s urgent motion with respect to custody and access of the parties’ two children – a daughter, age 16, and a son, age 13. On his motion, the father sought to change, on an interim basis, the terms of orders dated April 2012 and February 2020 with respect to the children’s primary residence, decision-making, and the parenting schedule.
[2] The father sought an order providing that he have sole custody of the children and that their primary residence be changed from the mother’s home to the father’s home. The father’s motion was dismissed. The primary residence of and decision-making for the children remains as provided in the 2012 and 2020 orders.
[3] The history of the parenting schedule is set out in the court’s endorsement on the father’s urgent motion: Pare v. Leblanc, 2020 ONSC 4701, at paras. 1-6. I shall not repeat that history in this endorsement.
[4] The order made on the father’s urgent motion (a) set out the parenting schedule, to which the parties consented, for the August long weekend, and (b) required the parties to agree to a parenting schedule for the balance of the month of August. In addition, the order required the parties to agree to a parenting schedule such that, over the months of September and October, it reverted to the week-on and week-off schedule to which the parties and the children had been adhering, by agreement (not by court order) during the first several months of 2020.
[5] The parties were unable to agree upon a parenting schedule for the months of September and October 2020. They returned to the court on September 11, 2020 for a case conference. With the assistance of the court, an agreement on the parenting schedule for the months of September and October 2020 was reached. The parties were to provide the court with a draft order reflecting the parenting schedule to which they agreed. As of the date of this endorsement, a draft order in that regard has not been provided to the court.
[6] The order made on the father’s urgent motion provided that if the parties were unable to agree upon costs of the motion, written submissions were to be delivered according to a specified timetable. The court received written submissions from the mother. No submissions were received from the father.
[7] The mother requests costs, on a full recovery basis, in the amount of $6,278.28. That amount is broken down as follows:
Fees $ 5,500.00
HST on fees $ 715.00
Disbursements (incl. HST) $ 63.28
[8] The fees are based on counsel’s hourly rate of $250 and docketed time of 22 hours in responding to the preliminary and substantive aspects of the father’s urgent motion. Counsel is six years at the bar.
[9] The mother submits that with the father’s urgent motion dismissed, she is the more successful party. She also submits that the father resorted to litigation (i.e., the request for an urgent motion) without any effort to resolve the issues through discussion or negotiation. In addition, the mother submits that the father’s behaviour is, at a minimum, unreasonable and, at a maximum, demonstrative of bad faith on his part.
Analysis
[10] Costs in a family law proceeding are governed by Rule 24 of the Family Law Rules, O.Reg. 114/99. The starting point is r. 24(1) and the presumption set out therein that a successful party is entitled to their costs of a motion.
[11] In Mattina v. Mattina, the Ontario Court of Appeal summarized the four fundamental purposes that the “modern costs rules” are intended to foster: “(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” (2018 ONCA 687, at para. 10, citations omitted).
[12] The mother’s entitlement to costs has not been put in dispute by the father. In any event, I agree with the mother that she is the “more successful” party in the proceeding. I find that she is entitled to her costs of the motion. Some of the factors discussed below with respect to the quantum of costs awarded also address one or more of the four fundamental purposes listed above.
[13] The presumption that a successful party is entitled to their costs does not mandate that the amount of the costs, if awarded, be on a “full recovery” basis. When fixing costs, something other than strict arithmetic is required. Factors such as reasonableness, proportionality, and the reasonable expectations of the opposing party must be considered.
[14] Subrule 24(12) sets out the factors to be considered when fixing costs:
(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.
[15] The issues on the father’s motion were of significant importance to the parties (r. 24(12)(a)) given that the parenting schedule that the father was not following the court orders, the parenting schedule that had been followed for several months was abandoned by the father and the children, and the mother had not seen the children regularly for several months. It was also important for the children that a parenting schedule be determined so that they would have stability as they prepared to return and ultimately returned to school.
[16] Several aspects of the father’s behaviour (r. 24(12)(a)(i)) are relevant to the court in fixing the costs to which the mother is entitled:
• The father acknowledged that his approach throughout the months leading up to the date on which the motion was heard was to permit the children to see and spend time with their mother in accordance with the children’s wishes. He provided no evidence that he actively encourages the children to spend time with their mother (para. 45 of the original endorsement); and
• The father’s resort to the court without first attempting to resolve the relevant issues through negotiation, including with the mother’s counsel. The father’s failure to attempt to resolve the issues through negotiation is troubling when the circumstances includes the additional stress for the children and the parties caused by the Covid-19 pandemic.
[17] With respect to the work done by the mother’s counsel (r. 24(12)(a)(ii) and (iv)), I am satisfied that the hourly rate charged for a lawyer six years at the bar is reasonable.
[18] It is, however, difficult to assess whether the 22 hours of docketed time is reasonable. The costs outline filed identifies a total of 22 hours of docketed time from June 9 to August 25, 2020. It would have been helpful to have a breakdown of the time for correspondence and communication, preparing motion materials, the appearance on July 31, and time spent on the matter subsequent to the release of the endorsement on August 4, 2020. It is not possible to ascertain how time spent between July 31 (the date on which the motion was argued) and August 25 (the end date identified in the costs outline) relates to either the preliminary or the substantive aspects of the father’s motion. For those reasons, costs are not awarded on a full recovery basis.
[19] I find that the mother is entitled to her costs of the motion on the basis of fees in the amount of $4,500, with HST thereon in the amount of $585. I am satisfied that the disbursements in the amount of $63.28 are reasonable. The total of costs awarded is therefore $5,150.[^1]
Summary
[20] The father shall pay to the mother her costs of the father’s urgent motion in the amount of $5,150.00 inclusive of fees, disbursements, and applicable HST.
Madam Justice Sylvia Corthorn
Released: October 29, 2020
COURT FILE NO.: FC-19-2086
DATE: 2020/10/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TRACY PARE (VILLENEUVE), Applicant
-and-
JASON LEBLANC, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Rebecca E. Rosenstock, Counsel for the Applicant
Respondent is self-represented
Allison Lendor, for the Office of the Children’s Lawyer
HEARD: In writing
COSTS ENDORSEMENT
(Respondent’s Motion re Custody and Access)
Madam Justice Sylvia Corthorn
Released: October 29, 2020
[^1]: $4,500 + $585 + $63.28 = $5,148.28, rounded to $5,150