Court File and Parties
Court File No.: FS-16-2387 Date: 2021-06-18 Superior Court of Justice - Ontario
Re: D., Applicant And: T., Respondent
Before: Conlan J.
Counsel: Mr. P. Sicco, Counsel for the Applicant Ms. C. Doris and Ms. J. Luscombe, Counsel for the Respondent
Endorsement on costs
I. Introduction
The Trial and the Judgment
[1] After a six-day trial, this Court, in a Judgment reported at 2021 ONSC 2945, ordered the relief sought by the father, T., with very few amendments. In short, because of what this Court found to be a lengthy and cruel campaign of parental alienation engaged in by the mother, D., the child, R., was ordered into therapy, and the father was granted sole decision-making responsibility and, after the therapeutic intervention has been completed, exclusive parenting time. All contact between the mother and the child has been terminated, temporarily, and the case was directed to return before this Court in four months’ time after the Judgment was rendered.
[2] The father was, thus, entirely successful and is presumptively entitled to some costs. The parties have been unable to agree on those costs, and written submissions have been filed by each side.
The Positions of the Parties on Costs
The Father’s Position
[3] The father, the successful party, seeks costs in the total amount of $213,436.28, on a full indemnity basis.
[4] The father submits that the result after trial was better for him than his offer to settle, and he relies on 18(14) of the Family Law Rules. The father submits further that the mother made no offers to settle for the trial and was generally intransigent throughout the proceeding. Finally, the father relies on what his counsel describes as being conduct on the part of the mother that is worthy of censure.
The Mother’s Position
[5] The mother’s main argument is that the father is not entitled to costs on a full indemnity basis, notwithstanding that a technical application of 18(14) of the Family Law Rules would likely dictate that result for the period of time from the date that the father’s offer to settle was made. The mother submits further that this Court should disallow certain fees and disbursements claimed by the father, for various reasons, and that this Court should take into account the mother’s alleged precarious financial circumstances in terms of what would be a reasonable quantum of costs to award in favour of the father.
[6] Such a reasonable amount would be, the mother submits, $80,000.00 for fees and $17,465.00 for disbursements.
II. Analysis
The Basic Legal Principles on Costs
[7] The successful party, the father, is presumed to be entitled to some costs – 24(1) of the Family Law Rules. There is nothing here, in my opinion, that would suggest otherwise, and in fact the mother does not dispute the father’s entitlement to some amount of costs in his favour.
[8] Quantum of costs is largely discretionary. There is no exhaustive list of factors that a court can consider in determining quantum [24(12) of the Family Law Rules], although an offer to settle and its terms are certainly relevant and shall be examined in deciding whether a party has behaved reasonably or unreasonably: 24(5) of the Family Law Rules. That applies to any offer to settle, not just one that meets the requirements of 18(14) of the Family Law Rules.
[9] A party who makes an offer to settle is, unless ordered otherwise, entitled to costs to the date that the offer was served and full recovery of costs from that date, provided that certain conditions are met. One of those conditions is that the party who made the offer must have obtained an order that is as favourable or more favourable than the offer. Having said that, as indicated immediately above, in determining the quantum of costs, the court may consider any offer to settle, regardless of whether it meets the said conditions: 18(14) and 18(16) of the Family Law Rules.
[10] Recognizing that a costs order should (i) indemnify the successful party, at least partially, (ii) encourage settlement, and (iii) disapprove of bad faith or inappropriate conduct by or on behalf of a party, the overriding objective of a costs award, it is well accepted in the jurisprudence, is to make an order that is just, and fair, and reasonable, and proportionate. All of the circumstances should be taken into account, including the reasonable expectations of the unsuccessful side and his/her ability to pay.
The Decision
Entitlement to Costs
[11] There are generally three sub-issues to every contested costs proceeding: (i) entitlement, (ii) scale, and (iii) quantum.
[12] This question is conceded by the mother – the father is entitled to some amount of costs in his favour.
Scale of Costs
[13] On the second question of the appropriate scale of costs, it is clear that the father bettered, after trial, the terms of his offer to settle dated February 17, 2021. He offered to settle for a shorter no-contact period between the child and the mother than what was ultimately ordered by this Court. That alone, the other perquisites of the Rule having been met, would entitle the father to full indemnity costs from the date of the said offer to settle.
[14] Notwithstanding that, there are instances where a strict application of 18(14) of the Family Law Rules may not be appropriate, particularly where, as I said in a recent family law decision reported at N. v. F., 2021 ONSC 416, at paragraphs 25-27, it is an “all or nothing” battle, with little room for compromise. In our case, what the father offered to settle for still amounted to a drastic change in the status quo and a complete reversal of fortune for the mother. Although she could have, and should have, participated more fully by offering to vary the Final Order under review in some other way(s), to the benefit of the father, at the same time she can hardly be blamed for choosing not to accept the father’s pretrial offer.
[15] I am not prepared, in this case, to award to the father full indemnity costs for any period of time, whether before or after the date of his pretrial offer to settle.
[16] I elect to take into consideration the conduct of the mother when considering the overall quantum of costs, discussed below, rather than label it as bad faith.
[17] The award made herein effectively amounts to costs in favour of the father on a substantial indemnity scale.
Quantum of Costs
[18] On the third issue of quantum of costs, I reject the mother’s arguments about disallowing certain fees and disbursements claimed by the father, for various reasons, and that the mother simply cannot afford a costs award more than that being suggested.
[19] On the former, a Bill of Costs is to be assessed but not meticulously, unless there is good reason to do so. A line-by-line analysis is neither required nor helpful, provided that the Bill, standing on its own, is considered to be fair and reasonable. Smith Estate v. Rotstein, 2011 ONCA 491, at paragraph 54.
[20] In addition, under 24(1) of the Family Law Rules, the mother is liable to pay costs of the “case”, not just costs related to the trial specifically.
[21] I do not share the mother’s skepticism about the time dockets filed and/or the disbursements charged by counsel for the father. In particular, I reject the arguments made at paragraphs 18 through 22 of the written costs submissions filed on behalf of the mother.
[22] On the latter, that is the mother’s alleged “very limited financial means” (paragraph 24 of the mother’s written costs submissions), I am not sympathetic. She has a steady job. She makes decent money, $80,000.00 plus per year. She has sizeable assets and an overall net worth that is substantially in the positive. She was represented by experienced counsel throughout. She was a vociferous litigant, before and during the trial, as she was entitled to be, and she cannot now reasonably deny that she knew that the scorched-earth litigation strategy would, if unsuccessful, result in equally oppressive costs consequences. That is the nature of the beast.
[23] The $213,436.28 being claimed by the father includes about $26,000.00 in disbursements ($24,730.60 plus $986.12). This Court allows all of the disbursements being claimed.
[24] The $213,436.28 being claimed by the father includes about $188,000.00 in fees ($167,741.16 plus $19,978.40). The $188,000.00 is based on full indemnity. The substantial indemnity amount for fees would be about $150,000.00.
[25] The conduct of the mother throughout the litigation of the Motion to Change must attract substantial indemnity costs, in my view. Here, I am referring to her conduct as a litigant rather than as a parent. The latter has already been addressed with a finding that she wrongfully alienated the child from her father and the terms of the Judgment. The former includes (i) her clear violation of the June 1, 2018 Order of Justice Coats, made on consent, in terms of Dr. Fidler’s aftercare recommendations, and (ii) her choice to proceed to trial without having made any real effort to settle the case in some way that would have altered the Gibson J. Final Order but not to the extent sought by the father, and (iii) her choice to surreptitiously record access exchanges between the child and her father and then conscript the assistance of a civilian, a supposed arm’s-length facilitator, to partake in the said recording, and (iv) her continued insistence that all service providers and even the judges previously involved in the case are somehow out to get her.
[26] Thus, I will allow the father to recover $150,000.00 in fees.
The Order
[27] What is just and fair, reasonable and proportionate, given all of the circumstances? What costs award would meet the three objectives of at least partially indemnifying the successful litigant, T., encouraging settlement, and addressing bad or inappropriate conduct by a litigant, D.?
[28] In my view, that figure is an even $175,000.00 - $150,000.00 for fees, on a substantial indemnity basis, and $25,000.00 for disbursements.
[29] The father asks that the costs award be payable within 60 days. With respect, I think that is unreasonable, especially given the upheaval that the family has experienced as a result of the Judgment. I want the mother to focus for now on the health and welfare of the child. Thus, I will extend the time for payment.
[30] This Court, therefore, orders that D. shall pay costs to T. in the total, all-inclusive amount of $175,000.00, which sum shall be paid in full within 180 calendar days of the date of this Endorsement.
(“Original signed by”)
Conlan J.
Date: June 18, 2021