COURT FILE NO.: FC-11-1816-4
DATE: 2021/04/29
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Gregory Thomas Glenn Drover, Applicant, Represented by Susan Galarneau
-and-
Marnie Drover (nee Tyerman) Respondent, Represented by Daniel Duyvelshoff
BEFORE: Justice P. MacEachern
HEARD: April 28, 2021 in writing
COSTS E N D O R S E M E N T
- This endorsement determines costs of the Applicant’s motion seeking disclosure determined by me in writing on March 4, 2021.
Applicant’s Position
- The Applicant seeks costs of the motion fixed at $1,800. His position is that he is entitled to costs as the successful party on the motion, and that his costs are reasonable and proportional. He provides a Bill of Costs supporting that his total fees incurred on the motion were $2,181.47, inclusive of tax and disbursements.
Respondent’s Position
The Respondent’s position is that each party should bear their own costs of the motion or, in the alternative, costs should be fixed at $100.
The Respondent has provided her own Bill of Costs showing costs incurred with respect to the motion of $3,503 inclusive of tax. The Respondent does not take issue with the amount of the Applicant’s fees.
The Respondent’s position is that the Applicant was not fully successful on the motion because disclosure was only awarded for the period from August 2007 to present, that the Respondent acted reasonably in making an offer to settle the motion the day before her responding material was due, that the Applicant did not act reasonably, and that the Respondent has limited financial means.
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 Applicant was successful in obtaining an order for disclosure. He did not obtain all of the relief that he sought in his notice of motion. For example, his notice of motion sought all of the records, whereas I only ordered disclosure from August 2007 to present. The relief sought in the notice of motion included wording that would have required third parties to provide disclosure, which was denied because no third parties were served.
- The Applicant also sought an order that the Respondent be responsible for the costs of obtaining the records. Although the Respondent did not provide evidence that the costs of obtaining the records would be too onerous on her, for expediency I ordered that the Applicant be responsible for paying the costs without prejudice to his position that the Respondent should ultimately be responsible.
- In contrast, the Respondent’s position was that detailed letters should be produced from the medical professionals, instead of the full records. This is also what she offered to do in correspondence sent to the Applicant the day before her responding motion material was due. The Respondent was unsuccessful on this position.
- Overall, in considering the parties respective positions, I find that the Applicant was the more successful party on the motion and is presumptively entitled to his costs of the motion.
Offers to Settle
The Applicant did not provide me with any settlement offers he made to settle the motion.
The Respondent offered to settle the motion by providing detailed letters from the medical professional, the cost of which would be shared by the parties. This offer was communicated the day before her responding motion material was due.
The Respondent did not achieve a result as favourable as her offer and therefore her offer does not qualify under Rule 18.
I also do not find that the Respondent’s offer weighs in favour of reducing the Applicant’s entitlement to costs, given that it was only communicated the day before her responding material was due, after the Applicant prepared his motion material.
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.
I have concerns with the conduct of both parties. It would have been reasonable for the Applicant to serve an offer to settle his motion but he did not do that. In some situations, it may be reasonable not to make an offer to settle if the party’s settlement position is the same as the relief requested in their notices of motion. But there are problems with the Applicant’s notice of motion, including that the wording of the relief sought seeks orders directing third parties to produce documents when the third parties were not served.
With respect to the Respondent, one of the reasons that she argued why the disclosure should not be ordered was because its production would be too onerous and expensive. I find that it was not reasonable for her to take this position without providing some evidence to support these assertions, particularly given that her counsel already had possession of some of the records in issue.
Overall, I find that the Respondent’s conduct was more unreasonable than the Applicant’s, which has the net effect of weighing in favour of a higher award of costs.
Other Factors
The Applicant’s total costs of $2,181.47 are reasonable and proportional to the complexity of the issues. These costs are less than the costs incurred by the Respondent.
I am concerned that the Respondent already owes the Applicant $42,000 in costs from previous costs awards. It would be contrary to the fundamental purposes of costs awards in family law matters if the Respondent was insulated from further cost awards because of her failure to pay previous costs awards, particularly when I have found that her conduct has been unreasonable. In addition, the Respondent’s evidence on the motion that she was prepared to pay half of the cost of having detailed letters provided from her medical professionals demonstrates some ability to pay, and the costs sought on this motion are relatively modest. I do not find that the Respondent’s claimed means are a basis to reduce the cost award.
Taking all of these factors into consideration, including my concerns about the Applicant’s conduct referenced above, I find that an award of costs fixed at $1,300 is just, fair, reasonable and proportional, and fosters the fundamental purposes of costs in family law proceedings.
I am not prepared to make an order about what the consequences may be if the Respondent fails to pay these costs prior to the next step in this proceeding. Such a determination requires more evidence than what is before me, and I therefore leave it to future determination.
Disposition
- For the reasons above, I order as follows:
a. the Respondent shall pay the Applicant his costs of the disclosure motion decided on March 4, 2021 fixed in the amount of $1,300, 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”).
Dated: 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