Court File and Parties
COURT FILE NO.: FC-19-45 DATE: 2021/04/28 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Robyn Eileen Vekeman, Applicant, Represented by Christian Pilon -and- Ryan Edmund Vekeman, Self-Represented
BEFORE: Justice P. MacEachern HEARD: April 28, 2021 in writing
COSTS ENDORSEMENT
- This endorsement determines costs of the motion dealing with interim access (now parenting time) that was argued on January 14, 2020.
Background
My decision on interim parenting time was released on February 6, 2020. My decision included that if the parties were unable to agree on costs, the Respondent may file submissions concerning costs on or before February 18, 2020, and the Applicant may file submissions on or before February 25, 2020.
The Respondent filed his cost submissions on February 18, 2020.
The parties subsequently filed a consent, which terms were incorporated into my order dated June 19, 2020. That consent provided that the issue of costs of the January 14, 2020 motion would be addressed in mediation/settlement discussions, but that if the parties were unable to resolve the issue, the Applicant may file her response to the Respondent's cost submissions by no later than April 30, 2020.
The Applicant did not file her costs submissions by April 30, 2020.
In March 2021, the Respondent brought a Form 14 B motion seeking for the costs of the motion heard on January 14, 2020 to be determined. The Applicant sought additional time to file her responding cost submissions, which I granted in my endorsement dated March 30, 2021.
Both parties have now provided written submissions on costs.
The motion scheduled for January 14, 2020 was to determine several interim issues. The main issues were the Respondent’s interim parenting time to the parties’ two younger children, interim child support and interim spousal support. Prior to the hearing, the parties consented to Minutes of Settlement that provided for several orders to be made on an interim basis. These included an order for the disclosure of various records from child protection and police authorities. The parties also agreed to adjourn the interim child and spousal support issues to allow for further disclosure, discussion, and possibly questioning. The parties were unable to agree on interim parenting time and the motion proceeded to determine that issue.
In my endorsement released on February 6, 2020, I granted the Respondent unsupervised parenting time to the parties’ two younger children, with a graduated schedule increasing to alternate weekends.
The main point that was argued on the motion on January 14, 2020 was whether the Respondent’s parenting time to the two younger children should be supervised on an interim basis. The Applicant’s position was that it should be supervised. I granted the Respondent unsupervised interim access. The Respondent was successful on this issue and he is presumptively entitled to costs with respect to this issue.
Respondent’s Position
- The Respondent seeks his costs of the January 14, 2020 motion of $13,884.94, inclusive of all taxes and disbursements. This represent full indemnity of his costs incurred on the motion. The Respondent’s position is that he is entitled to full indemnity of his costs because the costs incurred were reasonable, necessary and appropriate given the complexity and importance of the issues and that the Applicant demonstrated bad faith in making numerous serious, damaging and unsubstantiated allegations, as well as by submitting significant material not relevant to the issues on the motion, which required the Respondent to incur unnecessary legal fees.
Applicant’s Position
- The Applicant’s position is that each party should bear their own costs of the January 14, 2020 motion. The Applicant’s position is that she acted reasonably on the motion, and that the Respondent’s bill of costs is unreasonable and disproportionate because it includes all of the fees on the motion, when only a part of these fees relate to the parenting time issue. The Applicant submits that only 33% of the Respondent’s bill of costs should be attributed to the interim parenting time issue. The Applicant also submits that she has limited financial means to pay costs.
Factors in Determining Costs
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 (Rule 2(2) of the Family Law Rules)[^1].
Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.
There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs[^2]. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party[^3].
Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of 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.
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 Rule 18(14).
Rule 18(14) provides that a party is, unless the court orders otherwise, entitled to costs on a full recovery basis from the date an offer was served, if the following conditions are met:
(a) If the offer relates to a motion, it is made at least one day before the motion date.
(b) 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.
(c) The offer does not expire and is not withdrawn before the hearing starts.
(d) The offer is not accepted.
(e) 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).
Rule 24(4) addresses the situation in which a successful party has behaved unreasonably: 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.
Rule 24(5) provides guidance on how to evaluate 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.
Where the parties have divided success, the court may apportion costs as appropriate. (Rule 24(6))
Rule 24(8) discusses the cost consequences for a party who has acted in 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.
Success of the Parties
- The Respondent was successful on the interim parenting time issue, and specifically on the issue of supervision. This was the main issue argued on the motion. I find that the Respondent was the successful party and is presumptively entitled to costs of the interim parenting time issue.
Offers to Settle
Both parties served offers to settle the motion. I find that both acted reasonably in doing so. Neither party, however, achieved a result on the motion that was as favourable or more favourable than their offer. Neither party is entitled to costs being awarded under Rule 18(14).
The Respondent served an offer to settle all of the issues on the motion on January 10, 2020. This motion was not severable and included the disposition of the child support and spousal support issues. The portion of the Respondent’s offer that related to interim access mirrored, approximately, the order obtained on the motion, with some minor differences. But because the offer was not severable on the interim parenting issues, the offer does not qualify under Rule 18.
The Respondent’s offer to settle is a factor to be considered under Rule 24(12)(a)(iii). Under this factor, I would find that the Respondent’s offer weighs in favour of an award of costs that includes a higher (but not full) indemnification amount for the Respondent’s costs incurred after his offer was made on January 10, 2020. However, the Respondent’s bill of costs does not separate costs incurred after January 10, 2020, and therefore I am unable to award an additional amount of costs on this basis.
The Applicant offered to settle the issue of interim access by granting the Respondent supervised access of the two younger children. As stated above, I find that the Applicant acted reasonably in making an offer to settle the interim parenting time issues. I do not find that the content of her offer amounts to unreasonable conduct that justifies a higher award of costs against her.
Behaviour
Rule 24(12)(a)(i) specifically directs the Court to consider the reasonableness and proportionality of each party’s behavior as it relates to the importance and complexity of the issues.
The Respondent’s offer to settle the interim access issue supports my finding that he acted reasonably.
I do not find that the Applicant’s conduct amounts to unreasonable conduct that justifies a higher award of costs against her, nor that she acted in bad faith. The fact that the Applicant was unsuccessful that interim parenting time should be supervised does not, in itself, amount to bad faith or unreasonable conduct.
Other Factors
The Applicant does not take issue with the Respondent’s costs incurred on the motion except to argue that a portion of those costs related to issues other than interim parenting time, and should therefore not be included. Both parties filed Bills of Costs showing similar total fees incurred on the motion. Both parties were represented by counsel on the motion.
The Respondent’s Bill of Costs does not identify if the costs claimed relate only to the issue of interim parenting time or represent all of his costs for the motion, including fees incurred to prepare material on the other issues, such as child and spousal support. In the absence of more detailed information about his fees (such as by attaching detailed time entries with descriptions of the tasks undertaken and to what issue they related), I must conclude that the Respondent’s Bill of Costs is for all of the costs incurred on the motion, including time and material spent on issues other than interim parenting time. The Respondent is only presumptively entitled to costs on the issue of his interim parenting time.
The Respondent has not provided a breakdown of the fees incurred on the interim parenting time issue. A significant amount of the material filed on the motion related to the other issues, including child and spousal support. In the absence of more detailed information from the Respondent, I find that an amount of 33% of the total cost that he claims is reasonable and proportional in relation to the issue of interim parenting time.
I do not find that the Applicant’s limited employment income is a basis to reduce the cost award. The Applicant receives significant child and spousal support from the Respondent. I do not find that the award of costs made herein will create an undue financial hardship on her. The fundamental purposes of costs in family proceedings would not be fostered by insulating the Applicant from the cost consequences of being the unsuccessful party on the motion.
Disposition
- Taking all of these factors into consideration, I find that an award of costs fixed at $3,000, inclusive of tax and disbursements, is a just, reasonable, and proportional award of costs that meets the purposes of costs under the Family Law Rules. Therefore, I order as follows:
(a) the Applicant shall pay the Respondent his costs of the motion heard on January 14, 2020 fixed in the amount of $3,000, payable forthwith.
(b) this order shall bear post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”).
April 29, 2021 __________________
Justice P. MacEachern
[^1]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867 [^2]: M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, at para. 40 [^3]: Berta v. Berta, 2015 ONCA 918 at para. 94