COURT FILE NO.: 74-2020
DATE: October 29, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Judith Peladeau
– and –
Eric Charlebois
Bruno Sharpe, counsel for the Applicant
Maryse Renaud, counsel for the Respondent
HEARD: In Chambers, October 29, 2020
RULING ON COSTS
Desormeau, j.
Background
[1] On August 13, 2020 this court heard a motion regarding several issues, the principal ones being custody, access, child support, transportation and police enforcement. In my ruling delivered August 14, 2020 (unreported), the parties were directed to provide costs submissions if that issue could not be resolved through counsel.
[2] These are my reasons for awarding costs in favour of the Father in the amount of $1,405.76, which I find to be proportionate and reasonable in the circumstances.
Background
[3] The issue which brought the parties to the motion heard in August, revolved around what was in the best interest of the child: Isaac Charlebois, born November 27, 2017.
[4] Isaac’s parents separated in July 2018, after being together for two years. From separation until April 21, 2020, the child resided primarily with the Mother. However, as noted in my ruling, I found that the Mother restricted the Father’s access to the child, placing unreasonable barriers to his ability to have access to Isaac, requiring supervised access at all times, and controlling when the Father could or could not see the child.
[5] On April 21, 2020, following what I characterized as a domestic dispute occurring in front of Isaac, due principally with concerns regarding the Mother’s mental health, the child began to reside primarily with the Father, with the support of Valoris (child protection services). Access between Isaac and the Mother was gradually increased by the Father, in line with Valoris’ direction, until the hearing of the motion.
[6] Based on the evidence, I found that there could be arguments advanced by each parent that the other had unilaterally attempted to create a new status quo by limiting access between Isaac and the other parent. However, I declined delving into the argument due to the contradictory nature of the untested affidavit evidence. I nevertheless found that prior to separation there was a sharing of responsibilities for the parents.
[7] I indicated my concerns about the Mother’s position advanced at the motion that the Father be restricted to only daytime access after what had been months of appropriate parenting skills exhibited by him. I found the Mother, in her restrictive position, failed to recognize the importance of the relationship between Isaac and his Father. I also noted that the Father facilitated access between Isaac and his half-sisters during the time the Father was caring for Isaac.
[8] I found that both parents love Isaac greatly and wanted to spend as much time as they could with him. I was persuaded on the evidence before me that both parents were good and capable parents, and they were both able to meet Isaac’s needs.
[9] I concluded that it was in Isaac’s best interest to have equal time with both of his parents, in a 2/2/3 time sharing schedule. I declined to make an interim custody order. I found that a police enforcement clause was appropriate in the circumstances. I determined it was appropriate to have the parents share the responsibility of transportation of the child for access. Finally, based on the relatively close levels of income, and increased cost of shared parenting time of the child, I found it appropriate that neither party pay child support.
Costs
[10] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, which provides that subject to the provisions of an Act or rules of court, costs are within the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[11] Rule 24 of the Family Law Rules (FLR) addresses the issue of costs, and states that there is a presumption that a successful party is entitled to the costs of a motion.
[12] 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 : Mattina v. Mattina, 2018 ONCA 867.
[13] The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2: Lawrence v. Lawrence, 2017 ONCJ 431, at para. 52.
[14] Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Lawrence v. Lawrence, supra, at para. 54.
[15] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.), para. 25; Lawrence v. Lawrence, supra, at para. 31.
[16] In Boucher v. Public Accountants Council (Ontario)(2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), the Ontario Court of Appeal indicated that a costs award should be a "fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant". A "fair and reasonable amount" is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9.
[17] One measure of what is “fair and reasonable” to pay in costs may be arrived at by looking at what the unsuccessful party paid for their own legal fees. (See Goryn v. Neisner, 2015 CarswellOnt 8562, and Mohr v. Sweeney, 2016 ONSC 3238)
[18] A successful party in a family law case is presumptively entitled to costs, subject to the factors set out in Rule 24 FLR. The Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded. See Beaver v. Hill, 2018 ONCA 840, at paras. 9 and 10.
[19] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher v. Public Accountants Council (Ontario), supra.; Lawrence v. Lawrence, supra, at para. 64.
[20] Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs. Proportionality is a core principle that not only governs the conduct of the proceedings generally, but is specifically applicable to fixing costs: Beaver v. Hill, supra, at paras. 12 and 19.
[21] An award of costs is subject to: the factors listed in Rule 24(12) FLR, Rule 24(4) FLR pertaining to unreasonable conduct of a successful party, Rule 24(8) FLR pertaining to bad faith, Rule 18(14) FLR pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918 at para. 94.
[22] In making a determination, the court must consider Rule 24(12) FLR, which outlines the factors to be considered in quantifying costs:
24 (12) 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;
(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. O. Reg. 298/18, s. 14.
[23] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(12)(a) (1) above). It reads as follows:
24 (5) 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.
[24] Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141.
[25] Rule 18(14) sets out the costs consequences of failure to accept an Offer to Settle:
18 (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
[26] The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of Rule 18(14) FLR: Rule 18(15) FLR. See Neilipovitz v. Neilipovitz [2014] O.J. No. 3842 (SCJ).
[27] When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, when exercising its discretion over costs, even if Rule 18(14) FLR does not apply: Rule 18(16) FLR.
[28] Close is not good enough to attract the costs consequences of 18(14) FLR. The offer must be as good as or more favourable than the trial result. However, even if the offer does not attract the costs consequences set out in Rule 18(14) FLR, it may be considered under Rule 18(16) FLR: Gurley v. Gurley, 2013 ONCJ 482.
[29] The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order: Wilson v Kovalev, 2016 ONSC 163.
[30] Rule 24(6) FLR provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly "divided" requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues that required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (Ont. S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (Ont. C.A.)): Lippert v. Rodney, Norton and Norton, 2017 ONSC 5406, at para. 14.
[31] While Rule 24(12)(b) FLR does permit the consideration of ability to pay (under the umbrella of "any other relevant matter"), it is given significantly less prominence than the presumption that costs will follow success. (See Biant v. Sagoo, 2001 28137 (ON SC), 2001 CarswellOnt 3315, [2001] O.T.C. 695, 20 R.F.L. (5th) 284 (Ont. S.C.J.): Lawrence v. Lawrence, supra, at para. 33)
[32] Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). (See Peers v. Poupore, 2008 ONCJ 615 (Ont. C.J.), para. 42; Lawrence v. Lawrence, supra, at para. 35)
[33] The (financial) means of the unsuccessful party may not be used to shield them from liability for costs, particularly when they has acted unreasonably: Gobin v. Gobin(2009), 2009 ONCJ 278, 71 R.F.L. (6th) 209 (Ont. C.J.), para. 24; Lawrence v. Lawrence, supra, at para. 36.
[34] Those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings: Balsmeier v Balsmeier, 2016 ONSC 3485, adopting with approval the comments of McGee J, from Mohr v. Sweeney 2016 ONSC 3338, 2016 CarswellOnt 7716, at para. 17, citing Balaban v. Balaban, 2007 7990 (ON SC), 2007 CarswellOnt 1518, at para. 7.
[35] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made: Lawson v. Lawson, 2008 23496 (ON SC), 2008 CarswellOnt 2819, [2008] W.D.F.L. 3600, 167 A.C.W.S. (3d) 723, [2008] O.J. No. 1978 (Ont. S.C.J.). The position each party took in the case should also be examined: Lawrence v. Lawrence, supra, at para. 41.
[36] Rule 24(8) of the Rules states that 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. Persistent refusal by a party to make accurate financial disclosure and reveal their true income may rise to the level of bad faith: DePace v. Michienzi (2000) 2000 22460 (ON SC), 12 R.F.L. (5th) 341 (Ont SCJ); Kardaras v. Kardaras, 2008 ONCJ 616. A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues: Hunt v. Hunt [2001] O.J. No. 5111 (SCJ).
[37] Rule 24 (8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. (See Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Scipione, 2015 ONSC 5982) There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally: S.(C.) v. S. (M.) (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. SCJ). Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. (See Scipione, supra.)
[38] Even where the "full recovery" provisions of the Rules are triggered, either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith, quantification of costs still requires an overall sense of reasonableness and fairness: Goryn v. Neisner 2015 ONCJ 318 (OCJ). The Rules do not require the court to allow the successful party to demand a blank cheque for their costs: Slongo v. Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances: M.(C.A.) v. M.(D.) 2003 18880 (ON CA), [2003] O.J. No. 3707(supra); Scipione v. Scipione, supra.; Jackson v. Mayerle, 2016 ONSC 1556.
Analysis
[39] While there were a number of issues advanced at the motion, the primary ones argued were custody, access and child support.
[40] Neither party was successful on the issue of custody as I declined to make a custody order without a fulsome hearing. The Father was successful in his request for equal time sharing, shared holidays, and that no child support be payable. The Mother was successful on the issue of shared transportation. Both parties requested, and were granted, mutual police enforcement clauses.
[41] In determining the quantum of costs, I have taken into account the factors set out in Rule 24(12):
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
The issues at the motion were important to both parties. The evidence provided by both parties for the motion was proportional to the issues in question.
(i) each party’s behaviour:
I noted in my decision that both parties could advance an argument that the other attempted to establish a new status quo by restricting access to the child. Both parties placed their own interests ahead of the child’s in this regard.
(ii) the time spent by each party:
While the Father provided his bill of costs, the Mother failed to do so. Despite not being able to compare the time spent by each party to the other, I find the time spent by the Father was extremely reasonable.
(iii) any written offers to settle, including offers that do not meet the requirements of Rule 18:
Please see below.
(iv) any legal fees, including the number of lawyers and their rates:
Again, though I have no bill of costs from the Mother, I take no issue with the Father’s counsel’s hourly rate for legal fees.
(v) any expert witness fees, including the number of experts and their rates: n/a
(vi) any other expenses properly paid or payable:
The disbursements claimed by the Father are very reasonable.
(b) any other relevant matter:
n/a
[42] I am mindful that the Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678, at para. 13.
[43] While the offers to settle exchanged by both parties do not meet the criteria as set out in Rule 18(14)(5) FLR, they have nevertheless been considered pursuant to Rule 18(16) FLR.
[44] The Father sought costs based on a substantial indemnity basis of $1,874.35 given his success and offers to settle which he advanced were substantially met. Alternatively, he sought costs on a partial indemnity basis of $1,405.76.
[45] The Mother’s position was that success was divided, and as such no costs should be payable by either party.
[46] In her submissions, the Mother stated she was successful in obtaining the weekend schedule which she sought in order to maximize parenting time between Isaac and his sisters. At the motion, the Mother requested that the Father’s access be restricted to every second weekend from Saturday at 9:30 a.m. to 6:30 p.m., and Sundays from 9:30 a.m. to 6:30 p.m. The Father meanwhile requested shared time of the child either based on an alternating three or four day rotation or alternatively week about rotation. I granted a 2/2/3 rotation which permits both parents to have weekend time with Isaac. I note that the Mother’s offer to settle provided for every second weekend from Friday to Sunday, as well as an overnight on the off week. However, this is less than what I ordered at the motion. Conversely, the spirit of the Father’s offer to settle regarding access was substantially met.
[47] Ultimately, I am not persuaded there was divided success on the issues before the court. As noted above, both parties agreed to police enforcement terms, and neither party was success on the custody issue. Neither party’s offers addressed child support. The Mother was successful on the issue of shared transportation, which was a minor issue in the face of the access issue where the Father enjoyed success.
[48] I find that it is reasonable and proportionate that costs for motion should be fixed on a partial indemnity basis in favour of the Father.
Disposition
[49] As a result, costs are fixed at $1,405.76, inclusive of HST and disbursements, payable by the Mother to the Father, forthwith.
Justice Hélène C. Desormeau
Released: October 29, 2020
Peladeau v. Charlebois, 2020 ONSC 6596
COURT FILE NO.: 74-2020
DATE: October 29, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
Judith Peladeau
– and –
Eric Charlebois
Ruling on COSTS
Justice Hélène C. Desormeau
Released: October 29, 2020