Court File and Parties
COURT FILE NO.: FC437/20
DATE: July 29, 2021
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Paul Bruce Vanderlip, Applicant
AND:
Jaimie Elizabeth Vanderlip, Respondent
BEFORE: SAH J.
COUNSEL: Eric M. Vallillee for the Applicant
Bayly Guslits for the Respondent
HEARD: written submissions filed
ENDORSEMENT on costs
Overview
[1] This costs endorsement relates to a motion heard on June 16, 2021 by way of Zoom teleconference.
[2] The issue for determination was what parenting schedule was consistent with the best interests of the children, having regard for their expressed views and preferences as articulated through their counsel.
[3] I provided oral reasons on June 17, 2021 and I prepared an endorsement on that date. I encouraged the parties to settle the issue of costs. No settlement has been reached. Each party filed costs submissions.
Legal Principles
[4] Costs are in the discretion of the court pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This section is subject to the provisions of an Act or the rules of court.
[5] Rule 24(10)(a) of the Family Law Rules, O. Reg. 114/99 (FLR) directs the court to decide on the costs of a step in the case promptly after dealing with the step, in a summary manner.
[6] 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 under r. 2(2) of the FLR: Mattina v. Mattina, 2018 ONCA 867.
[7] The Court of Appeal subsequently clarified that proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs in family law matters: Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.
[8] Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party, subject to the factors set out in R. 24: Beaver, at para. 10.
[9] The factors to consider in setting the amount of costs are listed in r. 24(12). The court must consider the reasonableness and proportionality of several factors as they relate to the importance and complexity of the issues. These factors include each party's behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of R. 18, any legal fees and any other expenses and any other relevant matter. In particular, an award of costs is subject to: the factors listed in r. 24(12); r. 24(4) (unreasonable conduct of a successful party); r. 24(8) (bad faith); r. 18(14) (offers to settle); and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, at para. 94.
[10] Pursuant to r. 24(12) of the FLR, the court is required to consider the following factors in setting the amount of costs:
24(12)(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.
[11] Rule 24(5) provides the following criteria for determining the reasonableness of a party's behaviour:
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.
The Applicant's Position
[12] The Applicant seeks his costs of the Motion in the amount of $3,272.91 inclusive of HST and disbursements. Attached to his costs submissions is a detailed Bill of Costs with time dockets.
The Respondent's Position
[13] The Respondent takes the position that she is of limited means and has been largely unemployed after being laid off at the beginning of the pandemic, except for some work at the children’s school when in-learning school took place. She submits that there should be no costs paid by either party. She submits that she did not act unreasonable in the circumstance. In the alternative, she proposes to pay the Applicant $500 in costs payable at a rate of $50 per month until paid in full.
Analysis
[14] It is clear that the Applicant is the more successful party, and this creates a presumption of costs in his favour.
[15] The Respondent concedes that the Applicant was the more successful party.
[16] I must now determine the appropriate quantum of costs, having consideration for the law set out above.
Importance and Complexity
[17] The issues subject to the Motion were not necessarily complex or difficult but, in my view, they were significant and important to the children and both parties.
[18] Although the every other day parenting schedule was developed by the parties at a mediation, concerns were raised by the Applicant as to its reasonableness and whether the continuation of the unorthodox schedule remained in the children’s best interests.
Time Spent by Each Party, Legal Fees, Including the number of Lawyers and their Rates
[19] The Applicant’s counsel’s hourly rate charged is reasonable for a six year call. The Applicant’s counsel grandfathered his previous hourly rate and only charged $250 per hour.
[20] I have reviewed the Bill of Costs in detail.
[21] The rates set out in the time dockets are reasonable and the time spent is also reasonable.
[22] There are a few entries that do not relate to the motion and a deduction will be made for time not properly spent on the motion.
Written Offers to Settle
[23] When setting the amount of costs, r. 24(12)(iii) requires the court to consider any written offers to settle, including offers that do not meet the requirements of R. 18.
[24] Costs submissions reveal that efforts were made by the Applicant prior to the Motion being argued.
[25] Following the Case Conference held in February 2020, the Applicant attempted to address the issue of the shared parenting schedule. His March 2, 2021 correspondence was ignored by the Respondent.
[26] The Respondent was served with the Applicant’s Notice of Motion on April 15, 2021.
[27] The Applicant served the Respondent with an Offer to Settle on June 10, 2021.
[28] Based on the costs submissions before me, there is no information to suggest that the Respondent took steps to attempt to resolve this matter or to respond to the Applicant’s request to revisit the shared parenting arrangement.
[29] The Respondent submits that the Applicant’s decision to bring his Motion while the OCL process remained ongoing was not reasonable or an efficient use of resources.
[30] She submits that there was a fair expectation that the OCL would be permitted an opportunity to investigate and present findings prior to the parties making significant changes.
[31] The OCL disclosure meeting occurred one week prior to the Motion being argued. The children’s views and preference were made known and, if there was an intention to settle the issue, I am of the view that the Respondent should have made those attempts prior to the scheduled Motion, particularly when faced with the Offer to Settle.
[32] Each lawyer is entitled to strategize their client’s case as they deem fit and reasonable.
[33] Just because the Respondent believes that the Applicant’s Motion is premature, pending the OCL investigation, does not mean that it was a wrong decision or an unreasonable decision.
[34] The Respondent concedes that the Applicant’s Offer to Settle is similar to what I ordered on June 17, 2021.
[35] The Applicant’s Offer to Settle, in my view, was reasonable having consideration for the relief sought.
[36] Rule 24(12)(i) requires the court to consider each party's behaviour in relation to the issues from the time they arose, including whether a party has made an offer to settle.
[37] The Applicant behaved reasonably in the circumstances. His Offer to Settle the issue was reasonable and ought to have been accepted by the Respondent.
[38] In my view, the Respondent should have accepted at least part of the Applicant’s Offer to Settle and her failure to do so speaks to her behaviour, which is unreasonable in consideration of all the circumstances involving this case.
[39] Further, the Respondent did not attempt to offer to resolve the Motion in any way. Efforts should have been made to work towards a resolution, particularly following the OCL disclosure meeting, which occurred a week before the Motion was scheduled to be argued.
[40] The Applicant made attempts to resolve the issue in dispute up to the day before the motion was argued but there was no meaningful response from the Respondent..
[41] The Applicant also attempted to settle the issue of costs in advance of making costs submissions in writing. Efforts were made by the Applicant on June 20, 2021, to which there was no response from the Respondent.
[42] The Respondent exercised bad judgment. She did not attempt to resolve the Motion or costs and should have.
[43] Rule 24(12)(b) requires the court to consider any other relevant matters when setting an amount of costs. This requires me to consider the Respondent's ability to pay a costs award.
[44] The Respondent submits that the court must consider the income and assets of each party, including the relative means of each party to bear his or her own costs.
[45] The Respondent submits that she is of limited means and is currently only making a few hundred dollars per week. She relies on her financial statement sworn one year ago and her line 150 income from 2019.
[46] I acknowledge that any costs award I order that the Respondent pay might affect her ability to contribute to the children on an ongoing basis.
[47] I must balance this consideration with my view that the Motion could have, and should have, been avoided and having consideration for the Applicant’s attempts to settle prior to argument.
Order and Disposition
[48] I have considered the Applicant’s success on the Motion, the reasonableness and proportionality of the work outlined in the dockets attached to the Applicant’s costs submissions and the attempts made by the Applicant’s counsel to settle all issues.
[49] Some time entries relate to Mother’s Day parenting time, Father’s Day parenting time, attendance at Rule 39 court and attendance at the OCL disclosure meeting. I will therefore reduce the amount requested by the Applicant.
[50] I conclude that the Respondent is liable to pay costs in the sum of $2,000 inclusive of HST and disbursements and that this is a fair, reasonable and proportionate costs award in this case.
[51] The Respondent will be provided with time to pay, given her current financial circumstances. Although the evidence presented by the Respondent is historic, there does not appear to be a dispute regarding her ability to pay.
[52] Based on the foregoing, an order shall issue as follows:
- The Respondent shall pay to the Applicant, within 90 days, costs fixed in the amount of $2,000 inclusive of HST and disbursements.
“Justice Kiran Sah”
Justice Kiran Sah
Date: July 29, 2021