Court File and Parties

COURT FILE NO.: FS-16-000507 DATE: 2021-08-24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Philip Shane Hiebert, Applicant AND: Maria Christina Eugenia Van Raalte, Respondent

BEFORE: Chozik J.

COUNSEL: Rachael Pulis, Counsel for the Applicant Respondent, Self-represented

COSTS ENDORSEMENT

[1] On March 5, 2020 I dismissed the Applicant’s motion for a finding that the Respondent was in contempt. I allowed his urgent motion for an interim order granting him sole custody of the parties’ child, suspended the Respondent’s overnight access to the child and ordered that her access to the child be conditional on her compliance with the use of a breathalyzer device monitored by Recovery Science as ordered by Woollcombe J. on July 28, 2017 (“Final Order”).

[2] In my Endorsement, I concluded that the Respondent did not follow the Final Order. She breached many of its terms. I declined to make a finding of contempt because there were other avenues of redress available to the Applicant, including ones built into the Final Order, but he had not availed himself of those other avenues prior to bring a motion for a finding of contempt.

[3] At the same time, I found that the Respondent failed to truly submit to monitoring of her alcohol consumption prior to exercising parenting time with the child as required by the Final Order. She was arrest for impaired driving prior to the hearing of the motions. In the circumstances, I was satisfied that the Applicant’s urgent interim motion for sole custody had to be granted.

[4] In my Endorsement, I encouraged the parties to agree upon appropriate costs for these motions. If they were unable to agree, I invited the parties to make brief written submissions. I have received and reviewed the Applicant’s detailed written costs submissions, including the bill of costs. No responding submissions were served or filed by the Respondent.

[5] For the purpose of completeness, I note that the Applicant filed her costs submissions with the court in mid-March 2020, just days after the suspension of regular court operations as a result of the onset of the Covid-19 pandemic. Unfortunately, due to an administrative oversight during those unprecedented times, the Applicant’s costs submissions were not brought to my attention until August, 2021.

Position of the Applicant:

[6] The Applicant seeks recovery of his costs in the amount of $15,000 inclusive of fees, disbursements and HST. His total bill of costs for both motions is $23,780.51

[7] He submits that he is entitled to recovery of his costs because:

a. He achieved substantial success on these motions;

b. He behaved reasonably throughout;

c. The Respondent behaved unreasonably;

d. The issues on the motions were important and had to do with the safety of the parties’ child while in the care of the Respondent;

e. The Applicant served the Respondent with an offer to settle prior to the hearing of the motions, the terms of which were favourable or more favourable than the result of the motions. If she had accepted the offer, the Respondent would not have had to pay any costs and thousands of dollars and court time would not have been spent preparing for and arguing the motions.

Analysis:

[8] Under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the court has a broad discretion in ordering costs and in determining quantum. Discretion as to costs is always guided by reasonableness and proportionality. (Mattina v. Mattina, 2018 ONCA 395 at para. 12) Costs awards should reflect what the court views as a fair and reasonable amount to be paid by an unsuccessful party.

[9] Modern costs rules are designed to foster three purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants (Serra v. Serra 2009 ONCA 105, [2009] O.J. No. 432 (Ont. C.A.), at para. 8). Proportionality and reasonableness are the cornerstone considerations to be applied (Beaver v. Hill, 2018 ONCA 840 at para. 4, 12 and 19; Berta v. Berta, 2015 ONCA 918; Frick v. Frick, 2016 ONCA 799).

[10] Rule 24 of the Family Law Rules, O. Reg. 114/99, sets out the factors to be considered in awarding costs. The importance and complexity of the proceedings, as well as each party’s behaviour, the time spent and any written offers to settle must be considered. Under r.24(12) the court is required to look at the reasonableness or unreasonableness of each party’s conduct during the course of the dispute. Rule 24(5) sets out the factors against which reasonableness of the conduct is to be assessed.

[11] Successful parties are presumed to be entitled to costs unless there is a good reason to rebut the presumption, such as bad behaviour. A “successful party” does not necessarily mean the party who won the issues. It can mean the party who made a favourable offer that would have eliminated the need for extended litigation. Under r.18(14), a party who makes a favourable offer may be entitled to costs on a “full recovery” basis from the date of that offer.

[12] In this case, the Applicant was clearly the successful party. He is presumptively entitled to costs. The issue is what a fair and reasonable quantum is in the circumstances.

[13] He served an offer, the terms of which were favourable.

[14] In regard to the reasonableness of conduct, the Applicant submits that a lot of time was spent on this matter, including the preparation of written materials, preparation for and attendance at various court appearances which were adjourned because the Respondent was not prepared to proceed and that a one-day long motion took a day and a half to be heard.

[15] In my view, the matter was complicated – somewhat unnecessarily – not by the Respondent’s conduct but because the relief sought by the Applicant was a finding that the Respondent was in contempt.

[16] In my Endorsement, at para. 32, I found that the Applicant’s immediate recourse to a motion for a finding of contempt without first attempting to resolve the matter or engaging the review provisions built into the Final Order, was not appropriate.

[17] A finding of contempt can carry heavy penalties, including imprisonment. As a result of a party’s liberty being at stake, a motion for a finding of contempt is quasi-criminal in nature. Various protections under the Charter of Rights and Freedoms are therefore engaged. By chosing to pursue his relief within the framework of a contempt motion, the Applicant triggered those procedural steps which by their very nature complicate the proceeding, adding to the time required for the motions and their expense.

[18] At the same time, I found that the Respondent had breached the Final Court order. She did not comply with the monitoring of her alcohol consumption required by the Final Order. Those conditions were necessary for the best interests of the child, including his safety and well being. I granted the relief sought by the Applicant on his urgent motion on interim basis. The evidence called at the contempt hearing was both necessary and helpful for the court to be in a position to make findings with respect to the Respondent’s compliance with the alcohol monitoring and to assess the child’s best interests.

[19] In terms of quantum, the Applicant’s Bill of Costs reflects total costs of $23,780.51. He seeks recovery in the amount of $15,000. In my view, this is a reasonable and proportionate amount. This amount fairly reflects the reasonableness of the conduct of both parties, the complexity of the matter and the importance of the issues. in this matter.

[20] The amount of preparation engaged in by the Applicant’s lawyer in this particular case was justified. The Applicant was entitled to incur such legal expenses as were commensurate with the significance of the issues.

[21] The courts are not to second guess counsel after the fact considering tactical and evidentiary decisions. Services should be viewed from the perspective of what was apparent to counsel before the trial or the motion: Apotex Inc. v. Egis Pharmaceuticals, 1991 CanLII 2729 (Ont. S.C.), pg. 10. Detailed documentation as to the various steps taken to prepare this matter has been provided. The determination of costs is not to be done using a line by line analysis of the time spent.

[22] Having regard to the complexities and significance of the issues, the conduct of the parties, the various steps leading up to the motions and the requirement to award costs that are fair, reasonable and proportionate, I am of the view that the Applicant is entitled to costs in the amount of $15,000.

Conclusion:

[23] In conclusion, the Applicant as the successful party is entitled to his costs. Given all the circumstances, I find that costs of $15,000 are fair, proportionate and reasonable. The Respondent is ordered to pay this amount to the Applicant forthwith.

(“Original signed by”)

Chozik J.

Date: August 24, 2021