Court File and Parties

COURT FILE NO.: FS-16-00412020-0001 DATE: 20210719 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Daniel Copeland, Applicant AND: Corinne Geller, Respondent

BEFORE: Kiteley J.

COUNSEL: Adam N. Black and Rebecca D. Organ, counsel for the Applicant Gary S. Joseph and Aria C. MacEachern, counsel for the Respondent

ENDORSEMENT AS TO COSTS

[1] In an endorsement dated April 27, 2021 [ONSC 3078] I dismissed the appeal by the mother from two arbitration awards. In paragraph 78 I established a schedule for written submissions as to costs.

Position of the father

[2] In his submissions dated May 14, 2021, the father asked for full recovery of costs in the amount of $51,478.85 with respect to the appeal, $44,449.68 with respect to the motion to stay brought by the mother, and $3,356.10 with respect to the preparation of the costs submissions, for a total of $99,284.63.

Position of the mother

[3] In her submissions dated May 31, 2021, the mother took that position that there should be no order for costs for the appeal. In the alternative, she asserted that the costs should be fixed at $20,000 for the motion to stay, the appeal and the submissions as to costs.

Analysis

A. Entitlement to costs

[4] With respect to the appeal, the father was successful and pursuant to rule 24(1) and rule 1(2)(e), he is presumed to be entitled to costs of the appeal which includes the costs submissions.

[5] With respect to the motion to stay, the motion judge did not make findings with respect to the merits of the motion to stay. Instead, she focused on advancing the date of the hearing of the appeal. In that context, while the father was “successful” on the motion in that a stay was not granted, it was not a decision on the merits. However, because the father was ultimately successful on the appeal, he is entitled to costs of the motion to stay.

B. Offers to settle

[6] The appeal was perfected in early February, 2021. On February 16, 2021, the father offered to settle the appeal and the motion to stay by way of their dismissal. Since that was the result of the appeal, his offer was as favourable as the outcome. Pursuant to rule 18(14), he is presumptively entitled to costs to the date the offer was served and full recovery of costs from February 16, 2021.

[7] On April 8, at the hearing of the motion to stay pending the appeal, the appeal was scheduled for April 20, 2021. On April 14, 2021, the father offered to settle the appeal by adding an additional transitional phase to the parenting schedule that would be in place until July 4, 2022 after which phase two of the Award would be implemented. That offer was less favourable to the father and more favourable to the mother than the outcome of the appeal. That offer was “made at least seven days before” the hearing of the appeal and, pursuant to rule 18(14), the father is presumptively entitled to costs to the date the offer was served and full recovery of costs from April 14, 2021.

[8] On April 16, 2021, four days before the hearing of the appeal, the father offered to settle the appeal by modifying the transitional phase and by amending some of the details of the Award contained in Schedule C.

[9] Also on April 16, the mother served an offer to settle by modifying the transitional phase and by amending many of the details of the Award contained in Schedule C.

[10] I am unable to determine the sequence of the offers made on April 16, namely whether the mother’s offer preceded the father’s offer and his offer was meant to be responsive to her concerns in Schedule C. While potentially relevant pursuant to rule 24(12)(a), both are within the seven days required by rule 18(14) so the presumption does not apply.

[11] In her written submissions, the mother made no comment on the offers to settle. I have no explanation for her failure to accept the April 14th offer.

C. Conclusion on entitlement

[12] In my view, the father made timely and reasonable offers to settle. Pursuant to rule 18(14), he is entitled to costs to the date the first offer was served and full recovery of costs from February 16, 2021 to and including the written submissions as to costs.

[13] Rule 18(14) is not absolute. It constitutes a presumption, unless the court orders otherwise. The mother asks that the court “order otherwise” and deny the father any costs or fix them in an amount that is approximately 20% of the amount he claims.

[14] Pursuant to rule 24(4), a successful party who behaved unreasonably during a case may be deprived of all or party of the party’s own costs. The mother takes the position that the amount of costs sought is “grossly excessive and evidence of scorched earth policy” that the father has continued to advance. I will deal with the amount of costs below. I am not persuaded that the father behaved unreasonably and should be denied any part of his costs. In my view it would not be fair, just or reasonable to deny a father who was successful in opposing an appeal, successful in resisting a motion to stay, successful in restricting the fresh evidence in the appeal and who made timely offers.

D. Factors in rule 24(12)

[15] The father asserts that the mother acted unreasonably in various aspect of the appeal including failure to accept his offers to settle, pursuing the motion for fresh evidence which he asserts significantly increased the complexity, costs and impact of the proceeding on him, and pursuing an appeal for which I found at paragraph 44 there was no merit.

[16] Pursuant to rule 24(5), the mother’s late offer, the contents of that offer and her failure to accept the father’s offers, particularly the offer dated April 14, 2021 constitute unreasonable behaviour. While rule 24(4) does not apply in this case, pursuant to rule 24(12)(a)(i), that unreasonable behaviour is relevant to the amount of costs. In this case, the behaviour of the mother in relation to the offers is implicitly considered above in the context of rule 18(14) and the presumptive entitlement to full recovery of costs. It would be unfair and unnecessary to take it into consideration again.

[17] At paragraph 44 I held that none of the grounds of appeal had merit and the reality is that the mother does not agree with the outcome of the arbitration. I am not persuaded that that constitutes unreasonable behaviour in this case.

[18] The appeal was based on a five day hearing before the Arbitrator. The issues were not complex until the mother brought her motion for a stay and her motion for leave to file fresh evidence. Her motion to stay was not successful. Her motion for leave to file fresh evidence did not ultimately work to her advantage. Ironically, the only evidence allowed on the appeal was the fresh evidence advanced by the father. The heightened conflict triggered by the motions to stay and for fresh evidence, and the importance of the outcome of the motions did increase the costs to the father. But I am not persuaded that bringing the motions was unreasonable behaviour.

E. Amount of costs

[19] The crux of the issue is whether the costs claimed by the father can be reasonably justified. [Murphy v. Murphy 2010 ONSC 6204 at para. 72]

[20] In Beaver v. Hill [2018 ONCA 840 at paras. 12-14] the Court of Appeal held that proportionality and reasonableness are the touchstone considerations to be applied in fixing an amount of costs.

[21] Neither party challenged the hourly rates of any of the professionals involved in the case. Both have provided what constitutes full indemnity costs: the father at $99,284.63 and the mother at $40,168.31.

[22] The father has provided a costs outline plus copies of accounts sent to him. In the costs outline, for the period February 16, 2021 to April 8, 2021 a total of 116.8 hours were allocated to the motion to stay heard on April 8 less 15.5 hours related to the appeal captured in the appeal and, for the period March 2, 2021 to April 21, 2021 a total of 105.50 hours were allocated to the appeal. In other words, about 100 hours for the motion to stay and 105 hours for the appeal for a total of 205 hours.

[23] The mother has provided a bill of costs listing the timekeeper, the time spent and a short description of the services. In paragraph 17 of her submissions a total of 149.3 hours was allocated to the motion to stay and to the appeal. (The mother’s bill of costs refers to “fee/adjustment” that is not explained.)

[24] There is a significant imbalance between the total hours rendered particularly since one would expect that the services rendered on behalf of the appellant in respect of perfecting the appeal and filing the motion to stay and for fresh evidence would have been greater than the services rendered on behalf of the respondent.

[25] The second significant difference is in respect of the hours allocated to specific timekeepers. In the father’s submissions, in respect of Mr. Black’s services, 31.7 hours are allocated to the motion to stay and 44.9 hours on the appeal for a total of 76.6 hours at $495 per hour. In the mother’s submissions, 11.1 hours are allocated to Mr. Joseph for both the motion to stay and the appeal at $725 per hour.

[26] In respect of Ms. Organ’s services, 85.1 hours are allocated to the motion to stay and 60.60 hours are allocated to the appeal for a total of 145.70 hours at $385 per hour. On the other hand a total of 127.50 hours are allocated to Ms. MacEachern at $250 per hour.

[27] The third significant difference is in respect to when the services were rendered. The motion to stay was heard April 8. The appeal was heard April 20. In the 12 day period interval between April 9 to and including April 20, Mr. Black accumulated 44.90 hours and Ms. Organ accumulated 60.60 hours. In other words, the father’s costs in a 12 day interval were approximately the same as in the interval between February 16, 2021 and April 8. In that same period, Mr. Joseph accumulated 4.10 hours. The total of Ms. Organ’s hours in that interval was not provided in the submissions.

[28] Typically the court looks at the costs incurred by each party to assess reasonableness and proportionality. For example, if a party incurred costs based on $700 per hour for 50 hours while another party incurred costs based on $550 per hour for 60 hours, they would appear to be in the same “ball park” of reasonable expectations and proportionality. That is not the case here. I cannot determine the reason for the significant discrepancies. I cannot conclude that either of the costs incurred by the father or the mother is fair, reasonable or proportionate.

[29] The court is required to determine an amount that is “fair and reasonable”. In Boucher v. Public Accountants Council [2004 14579], the Court of Appeal held in paragraph 26 that fixing costs is not a mechanical exercise. It is not a question of adding up dockets. The instructions of the party have an impact on the extent of the services rendered and it would not be fair and reasonable to impose on the other party the impact of those instructions.

[30] I apply my knowledge of the nature of the issues, the volume of the record, the importance to the parties of the motion to stay, the motion for fresh evidence, the appeal and costs submissions. In my view it is fair, reasonable and proportionate that the mother pay costs from the date of filing of the notice of appeal to February 16, 2021 and full recovery costs from February 16, 2021 in the amount of $70,000.

[31] In each of the submissions, the parties raised the issue of ability to pay. From those submissions I infer that the original proceedings in 2016, two arbitrations and one appeal has been very expensive for both of them.

ORDER TO GO AS FOLLOWS:

[32] The mother shall pay to the father costs arising from the appeal, the motion to stay, the motion for fresh evidence and costs submissions in the amount of $70,000 inclusive of fees, disbursements and HST.

[33] The mother shall pay those costs no later than October 19, 2021.

[34] This order takes effect immediately and without issuance of a formal order.

Kiteley J.

Date: July 19, 2021