COURT FILE NO.: FC-12-549-2
DATE: 2021/08/26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: KEVIN MICHAEL GUERTIN, Applicant
AND
MELANIE MARIE-PAULE DUMAS, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Fan MacKenzie, for the Applicant
Ezioma O. Emejuaiwe Nnorom, for the Respondent
HEARD: June 29, 2021 by Zoom
costs ENDORSEMENT
Introduction
[1] The parties have one child together: Mayla Guertin, born August 7, 2009. The parties have been litigating with respect to decision-making, parenting time, child support and other issues since 2012. This endorsement addresses costs of an October 2019 interim motion, the father’s motion to change, and the mother’s cross-motion. The latter motion and the cross-motion were heard together in January 2020.
[2] The motion to change and cross motion are collectively referred to herein as “the Motions”. The ruling on the Motions is set out in Guertin v. Dumas, 2020 ONSC 4002.
[3] The costs of the October 2019 interim motion were reserved by the presiding judge, Justice Engelking, to the judge hearing the Motions.
[4] The father seeks costs of the Motions in the all-inclusive amount of $33,000. The mother asks that the court order the parties to bear their own costs. In the alternative, the mother asks the court to fix the father’s costs at a much-reduced amount. The mother’s alternative position is based primarily on the mother’s inability to pay.
Overview of Costs in Family Law Proceedings
[5] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that costs are in the discretion of the court. A framework for awarding costs in family law cases is set out in Rule 24 of the Family Law Rules, O. Reg. 114/99. That rule begins with a presumption that the successful party is entitled to their costs: r. 24(1).
[6] When addressing the issue of entitlement to costs, the court is required to consider the conduct of each party: rr. 24(4) and (5)(a). Specifically, the court must consider whether a party has behaved reasonably or unreasonably. A party’s conduct may affect entitlement to costs otherwise presumed.
[7] The court also considers the conduct of the parties when setting the amount, if any, to be paid in costs: r. 24(12)(a)(i). Other factors relevant to setting the amount of costs include offers to settle and legal fees incurred: rr. 24(12)(a)(iii) and (iv), respectively.
[8] These modern family cost rules are intended to foster four fundamental purposes: Mattina v. Mattina, 2018 ONCA 867, at para. 10. Those purposes are described at para. 10 of Mattina as follows: “(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” (citations omitted).
[9] In the matter before this court, the father relies on each of the four purposes listed above.
Disposition
[10] For the reasons that follow, the court orders the mother to pay the father his costs of the Motions in the all-inclusive amount of $17,000 and his costs related to the costs submissions in the additional amount of $1,000. For clarity, the costs awarded total $18,000.
[11] For the purpose of enforcement through the Family Responsibility Office (“FRO”), $3,600 is attributed to the issue of child support. That amount represents 20 per cent of the total costs awarded in this endorsement.
Analysis
a) Entitlement to Costs
[12] Six issues were determined on the Motions. The issues and a summary description of the outcome with respect to each are listed below:
Joint versus sole custody (now primary care) – the father was awarded primary care of Mayla;
The mother’s income – the court imputed income of $30,000 to the mother, and in so doing agreed with the mother’s submission on that issue;
The father’s income – it continues to be imputed at $36,000, as first determined for the purpose of an October 2015 order;
Child support – the mother was ordered to pay child support from September 2018 forward[^1];
Recreational or competitive cheerleading – the court ordered that Mayla be permitted to pursue competitive cheer, should she choose to do so. As of the date of the ruling on the Motions, due to COVID-19 it was uncertain when competitive cheer would resume. In any event, the father consented to being solely responsible for all expenses for competitive cheer over and above expenses otherwise incurred for cheer at the recreational level; and
Section 7 expenses – the court ordered that the parties share equally Section 7 expenses other than those related to competitive cheer.
[13] I find that the father was successful on the two most contentious issues – custody/primary care and participation in competitive cheer. For that reason, I apply the presumption set out in r. 24(1) with respect to entitlement to costs.
[14] I find that there is nothing about the father’s conduct as a litigant to warrant depriving him of costs or requiring him to pay a portion of the mother’s costs: r. 24(4).
[15] I turn next to the task of setting the amount of costs payable.
b) Setting the Amount of Costs
i) Previous Costs Awards
[16] Two previous awards of costs in favour of the father have already been made in this proceeding.
[17] First, in September 2017, Shelston J. ordered that the mother pay the father $8,000 for costs, on a substantial indemnity basis, with respect to an interim motion. Justice Shelston ordered that the $8,000 be paid within 60 days of the date of the final order on the father’s motion to change: Guertin v. Dumas, 2017 ONSC 5950, [2017] W.D.F.L. 5994, at paras. 28-29. This $8,000 costs award is over and above any amount set by the court in this endorsement for costs of the Motions.
[18] The court’s decision on the Motions was released on July 10, 2020. The $8,000 in substantial indemnity costs was, therefore, to be paid by September 10, 2020.
[19] Second, at a case conference conducted in October 2017, Phillips J. ordered that costs in the amount of $750 be paid by the party ultimately unsuccessful on the motion to change. That amount is included in the costs now claimed by the father.
ii) The COVID-19 Pandemic
[20] A case conference was conducted in April 2020 – prior to the release of the ruling on the Motions. The purpose of the case conference was to permit the court to ascertain the impact, if any, of the COVID-19 pandemic on the parties’ respective employment in the hospitality industry. The intention was to minimize the potential for any subsequent motions with respect to child support based on pandemic-related changes in the parties’ respective employment and/or financial circumstances between the January 2020 return date for the Motions and the date on which the ruling on the Motions was released.
[21] As of the date of the case conference, neither party was working. The parties agreed to waive child support for April to August 2020, both inclusive. The parties’ agreement in that regard is reflected in the court’s ruling on the Motions.
iii) Factors Relevant to Setting Amount of Costs
▪ Inability to Pay
[22] In support of her request that the amount set for costs be reduced from $33,000, the mother relies, in part, on inability to pay. When addressing costs of the interim motion before Shelston J., the mother also relied on inability to pay. At para. 23 of his decision, Shelston J. highlighted several principles related to the inability of a party to pay costs and cited cases in support of those principles.
[23] First, Shelston J. noted that an unsuccessful party is not entitled to rely on inability to pay as a “shield” when that party has acted unreasonably (citing Gobin v. Gobin, 2009 ONCJ 278 , 71 R.F.L. (6th) 209).
[24] Second, Shelston J. noted that the court is required keep in mind the best interests of the child. The court must not ignore the impact that an award of costs against a custodial parent would have on the child (citing Brennan v. Brennan, 2002 CanLII 2742 (ON SC)).
[25] I appreciate that the mother does not have custody/primary care of Mayla. The mother does, however, have a schedule pursuant to which she has regular parenting time with Mayla. The mother’s ability to fulfil her obligations towards Mayla during that parenting time is relevant to the mother’s financial circumstances. In addition, the mother has financial obligations in the form of child support and a 50 per cent share of Section 7 expenses.
▪ The Entitled Party and the Child’s Best Interests
[26] The best interests of the child are also relevant to the financial circumstances of the party entitled to costs. If the party entitled to costs is inadequately reimbursed for legal expenses, that party’s ability to provide for the child may be negatively affected: Benzeroual v. Issa and Farag, 2017 ONSC 6225, 97 R.F.L. (7th) 111, at para. 61 (citation omitted).
▪ Reasonable Expectations of the Unsuccessful Party
[27] The materials filed on the mother’s behalf indicate that her previous counsel of record – of which there are at least two – recorded time for which the mother’s legal expenses total in excess of $50,000. A comparison of those expenses to the expenses incurred by the father demonstrates that the parties have incurred approximately the same amount in legal expenses from the start of this round of proceedings to the completion of the Motions. On the interim motion before Shelston J., the father claimed full indemnity costs of $12,600. When that amount is added to the $37,000 in solicitor-client expenses upon which the father’s present claim for costs is based, the father’s legal expenses total approximately $50,000.
[28] It should not surprise the mother that the legal expenses incurred by the father are in the same range as hers. A party’s expectations as to the amount of costs the opposing party might incur is not one of the factors specifically identified in Rule 24. Those expectations do, however, fall within the scope of “any other relevant matter”: r. 24(12)(b) and Benzeroual, at para. 60 (citation omitted).
[29] A comparison of the legal expenses incurred by the unsuccessful party with those incurred by the successful party is of assistance to the court in considering both (a) the reasonableness of the costs requested by the party entitled to costs, and (b) the reasonable expectations of the party ordered to pay costs: Benzeroual, at paras. 59-60 (citations omitted).
[30] The father’s costs submissions include a chart in which the costs incurred by each of the parties on a step-by-step basis are delineated. From the chart it is clear that, not only is the overall amount of costs incurred by the parties similar, the parties incurred similar costs at each step in the litigation. The only exception to the latter is one step for which the mother’s expenses are well in excess of the father’s expenses.
▪ Unsuccessful Party’s Litigation Behaviour
[31] The father relies on what he submits are various forms of inappropriate and/or unreasonable behaviour by the mother as a litigant. I agree with the father to a certain extent and find that the mother engaged in such behaviour, including the following:
• As a result of the position taken by the mother in the spring and summer of 2019 with respect to Mayla’s school, the father was required to bring both a procedural and a substantive motion. The mother ultimately conceded to the father’s position on the substantive issue of the choice of school;
• The mother failed to respond in a meaningful way to the father’s request to admit. Regardless of difficulties the mother may have encountered because of the style or form of that document, the mother did not take steps to narrow the factual issues to be addressed on the Motions;
• The mother advanced substantive claims which she did not withdraw. Without notice to the father, the mother ultimately did not pursue those claims (i.e., spousal support and the imputation of income to the father) on the return of the Motions. As a result, the father incurred expenses to address claims that were not pursued.
[32] The types of behaviour in which the mother engaged as a litigant are to be discouraged. I note that the mother engaged in the above-listed behaviours in the years subsequent to the date of Justice Shelston’s costs order. That order provided the mother with fair warning of the potential costs consequence of unreasonable or inappropriate behaviour in the context of a family law proceeding. I find that the mother is an experienced family litigant; she was well-aware of the potential consequences of the types of behaviour in which she engaged throughout the Motions.
▪ Offers to Settle
[33] The father served offers to settle for the purpose of each of the interim motions and for the motion to change. The mother served no offers to settle at any time during the proceeding. I find that with respect to the motion to change, the end result matched or exceeded (in the father’s favour) several of the terms set out in the father’s offer.
[34] Factors that weigh in the father’s favour when setting the amount of costs include (a) the difference between the parties’ respective approaches to settlement throughout the proceedings, and (b) a comparison between the outcome on the Motions and the terms of the father’s offer to settle the motion to change.
▪ Proportionality
[35] The issues determined on the Motions were numerous; they were not complex. The legal expenses incurred by the father for the motion before Justice Shelston (2017), the motion before Justice Engelking (2019), and on the Motions (2020), are approximately $12,000 each. I find that the costs incurred for the motion before Justice Engelking, the Motions, and the smaller interim steps are proportional to the number and importance of the issues determined over time.
Summary
[36] I find it fair and reasonable to set the father’s costs of the Motions in the amount of $17,000. In addition, I award the father costs in the amount of $1,000 with respect to the costs portion of the Motions. In total, I order that the mother pay the father $18,000 in costs of the Motions.
[37] When the $18,000 awarded in this endorsement is added to the existing costs award of $8,000, the father’s entitlement to costs in this matter totals $26,000. That amount is approximately 50 per cent of the legal expenses he incurred on the Motions. In light of the mother’s limited financial circumstances and the ongoing obligations of each of the parties to provide for Mayla, a costs award equivalent to approximately 50 per cent of the expenses the father incurred is fair and reasonable.
[38] For the purpose of enforcement through the FRO, the father asks that the court attribute to the issue of child support 20 per cent of the costs awarded on the Motions: Benzeroual, at para. 67. I find that attribution to be reasonable. Therefore $3,600 of the costs awarded shall be attributed to child support for the purpose of enforcement through the FRO.
Madam Justice Sylvia Corthorn
Date: August 26, 2021
COURT FILE NO.: FC-12-549-2
DATE: 2021/08/26
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: KEVIN MICHAEL GUERTIN, Applicant
AND
MELANIE MARIE-PAULE DUMAS, Respondent
BEFORE: Justice Sylvia Corthorn
COUNSEL: Fan MacKenzie, for the Applicant
Ezioma O. Emejuaiwe Nnorom, for the Respondent
costs ENDORSEMENT
CORTHORN J.
Released: August 26, 2021
[^1]: The parties had, prior to making submissions on the Motions, agreed that the father had primary care of Mayla from September 2018 to the date on which the ruling on the Motions was released.