COURT FILE NO.: 135-2020
DATE:2020/12/03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pamela Kate Marie McIntyre, Applicant
AND
Matthew John O’Brien Mooney, Respondent
BEFORE: The Honourable Justice P. Kane
COUNSEL: Applicant, Self-Represented, Applicant
D. Waechter, for the Respondent
HEARD: In writing
cost decision
Position of the Parties Regarding Costs
[1] The father seeks an award of cost on these cross-motions of the parties, on a partial indemnity scale in the amount of $3,896 inclusive of disbursements and tax.
[2] The Bill of Costs produced by counsel for the father indicates:
a. total actual fees, disbursements and tax - $10,010;
b. total docketed hours of two lawyers and one legal assistant is 41.4 hours;
c. 36.6 hours docketed by D. Waechter as counsel for the father with four years call to the bar and a $210 hourly rate;
d. docketed time of 3.5 hours by K. Policelli as a lawyer with 14 years call to the bar and an hourly rate of $285 and 1.3 hours by M P, a legal assistant, using an hourly rate of $135; and
e. no disbursements are claimed.
[3] In his submissions on costs, the father:
a. acknowledges that success on these cross-motions was divided between the parties;
b. seeks costs on a partial indemnity scale due to the court’s determination that the Applicant mother acted contrary to the interests of the children, unreasonably and unilaterally with a level of aggression and senses of entitlement.
[4] The mother submits there should be no award of costs on these motions as:
a. although success of the parties on these motions was divided, she was more successful than the father as she was awarded temporary sole custody with the children to reside with her in the matrimonial home 70% of the time as opposed to the equal time sharing sought by the father; and
b. the respondent father on September 3, 2020, preferred his right of access to the matrimonial home ahead of his access with the children as he knew the mother had no other residence to live in with the children and that she was therefore obliged to return with the children to her parents’ home in Parry Sound.
Analysis
[5] The broad discretion in s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“Courts of Justice”), in determining cost entitlement does not detract from the requirement that the determination of costs must be made on a principled basis which requires due consideration of the factors set out in R. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules of Civil Procedure”) in order to achieve a just and reasonable determination: Geographic Resources Integrated Data Solution Ltd. v. Peterson, 2013 ONSC 1041 (Div. Crt.), at para. 15.
[6] Fixing of costs is not a mechanical exercise in reviewing a party's costs outline: Agius v. Home Depot Holdings Inc., 2011 ONSC 5272, at para. 11.
[7] The responsibility of the Court in the exercise of its discretion in determining costs pursuant to s. 131 and in considering the cost factors under r. 57.01, is to fix an amount of costs that is fair and reasonable for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful litigant as that amount may not be considered justified: Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 118 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at paras. 26 and 29.
[8] The Court, in determining the issue of costs, must consider and refer to the overriding principle of reasonableness. Failure to do so can produce a result contrary to the fundamental principles of justice. There are obviously cases where the prospect of an award of costs against the losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation: Boucher, at para. 37.
[9] The principle of proportionality is one of general application to the interpretation of r. 1.04(1.1) of the Rules of Civil Procedure and therefore applies to the application of the rules governing costs. Proportionality: (i) does not override other considerations when determining costs; and (ii) it should not be used as a sword to undercompensate a litigant for costs legitimately incurred: Aacurate General Contracting Ltd. v. Tarasco, 2015 ONSC 5980, at paras. 13-17 and Dang v. Anderson, 2017 ONSC 2150, at paras. 12-15.
[10] Section 131(1) of the Courts of Justice Act and r. 24 of the Family Law Rules, O. Reg.114/99, as am., govern the determination of costs on these motions.
[11] The relevant portions of r. 24 state:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
(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. O. Reg. 114/99, r. 24 (4).
(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. O. Reg. 114/99, r. 24 (5).
(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
(8) 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. O. Reg. 114/99, r. 24 (8).
(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.
Level of Success and Conduct of the Parties
[12] The parties acknowledge that success was divided. Unless no costs are to be awarded, r. 24(6) permits apportionment.
[13] Separated couples frequently dislike one another and either refuse to communicate or do so in anger. Separated couples don’t have the right to act in this manner.
[14] Due to the need to protect and promote the best interests of their children, separated parents need to pursue different priorities, namely to protect and promote the interests of their children including their relationship with that other parent.
[15] Historical “baggage” between the parents is their personal history, will likely never be resolved and is their individual responsibility. It is not relevant to and must not impair their ability to communicate and deal with the other parent regarding the children.
[16] Dislike of the other parent is irrelevant given the presence and need to promote the interests of children. It is not justification for a refusal to communicate, or to do so with anger and/or criticism with the other parent.
[17] Responsible separated parents know, or learn quickly, that the best interests of the children they profess to love requires that they adopt and maintain polite, respectful and effective communication with the other parent regardless of their feelings towards that other parent. Failure to do so is their failure. Failure to do so refutes their allegation of being a good and responsible parent who prioritizes and promotes the best interests of their children.
[18] The mother:
a. ignored the father’s inquiry whether she would bring the children back for the September commencement of school;
b. did not advise whether or when she would return with the children and instead returned unannounced, with their children;
c. despite their mutual statements months earlier that they should no longer reside together in the same residence, did nothing to determine whether the father had obtained alternate accommodation for himself and the children;
d. instead of communicating and verifying what their living arrangements would be, unilaterally and without notice adopted the position that she would have exclusive possession of the children and of their home upon her unannounced return, therefore denied the father entry, for what ever purpose, therein and instead responded as if she had the right to depart with the children thereby preventing their return to school and continuing to deprive the children of their relationship with their father;
e. ignored the father’s notice that he would be attending at their home the following day accompanied, albeit unnecessarily, by police, that the children should not witness that event and should therefore be cared for at the scheduled time by a designated neighbor; thereby knowingly exposing the children at their home to police intervention between the parents.
[19] Paragraph 68 of the decision on these motions is relevant in considering the level of success on these motions. The 70 % outcome the mother relies upon was only because she and the father, with their respective limited incomes, instead ignored the blatantly obvious issue how the children and the father could be reunited upon their return and where were the parents to live with their children.
[20] Making no award of costs in the face of the mother’s unreasonable conduct would amount to absolving her of failing to act in a responsible manner as required legally and as required for the best interests of the children. There should be cost consequences as a result of her conduct.
[21] This is a matter where r. 24(6) apportionment should apply given the divided success of the parties. Apportionment also recognizes the father’s responsibility and conduct.
Importance of Issues to the Parties
[22] The issues on the motions such as interim custody, access and possession of the matrimonial home were of utmost importance to both parties.
The importance of such issues impacts what are the reasonable level of costs incurred and claimed.
Time Expended and Hourly Rates
[23] The time docketed by the father’s lawyers and their hourly rates given their year of call appear appropriate.
[24] There was appropriate division of work between senior and more junior counsel with resulting cost savings.
[25] Absent legal qualifications and relevant case law, the court is unprepared to award costs for the docketed time of a legal assistant.
Settlement Offers
[26] No settlement offers are relied upon.
Conclusion
[27] Based on the above factors including an apportionment under r. 26(1), the father is awarded costs against the mother on these motions on a partial indemnity scale in the amount of $2,000, inclusive of disbursements and tax.
[28] The Court considers such award and its quantum on such scale to be reasonable and proportional to the importance, the number of issues argued and the outcome of the claims presented.
[29] Such award of costs shall be payable by January 30, 2021.
The Honourable Justice P. Kane
Date: December 03, 2020
COURT FILE NO.: 135-2020
DATE:2020/12/03
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Pamela Kate Marie, Applicant
AND
Matthew John O’Brien Mooney, Respondent
BEFORE: The Honourable Justice P. Kane
COUNSEL: Applicant, Self-Represented, Applicant
D. Waechter, for the Respondent
cost decision
Justice P. Kane
Released: December 03, 2020