COURT FILE NO.: FS-16-408402 DATE: 20210831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YEVGEN MOKHOV Applicant
– and –
NATALIYA RATAYEVA Respondent
Christina Doris and Sydney Bunting, for the Applicant Matthew Armstrong, Agent for the Respondent
HIMEL J.
REASONS FOR DECISION on costs
[1] Yevgen Mokhov (“the applicant”) brought a motion for an order that Katerina Mokhov (“the child”), born on August 21, 2015, be enrolled into a French Immersion program at Corsair Public School located in Mississauga, Ontario. Former counsel for the respondent mother, Nataliya Ratayeva (“the respondent) brought a motion on July 9, 2021 for an order removing Alexandra Abramian/Brigitta Tseitlin, Barristers & Solicitors, as counsel of record. The respondent filed a Notice of Change of Representation indicating that she will act in person. Matthew Armstrong acted as her agent for the purposes of the motion.
BACKGROUND OF THE APPLICATION
[2] In addition to seeking an order for the child to be enrolled at Corsair Public School, the applicant had also sought an order that: (1) that if the child misses more than two consecutive days of school and has not provided a doctor’s note within 72 hours of the absences, there shall be an automatic review of the parties’ parenting terms; (2) that the respondent provide the applicant with disclosure regarding her employment history for the past 24 months to the present and the childcare arrangements for the past 24 months to the present; and (3) that the applicant be granted costs on a full indemnity basis. These additional requests for relief were adjourned to a date to be arranged by counsel. This was because this matter had been booked for a one-hour motion by counsel and, in light of the volume of materials filed and the complexity of the issues raised, it would not be possible to argue all the requests for relief sought by the applicant within the allotted time. The applicant had proposed that I hear the motion concerning the choice of school for the child in September as this was most pressing. Counsel for the applicant suggested, and I agreed, that the remaining matters may be addressed at another motion to be scheduled. I heard the motion with respect to the child’s school on July 27, 2021 and requested that the parties re-attend because of additional information filed which was in response to questions I had raised at the initial hearing.
[3] Following their re-attendance, I released my decision and reasons on August 10, 2021 and ordered that if the parties were unable to agree on costs, that they file brief written submissions according to a timetable. I have now received and considered those submissions. The following is my decision with respect to costs.
POSITIONS OF THE PARTIES
[4] The respondent takes the position that she should be granted an order that the applicant pay her costs in the amount of $11,808.50 as she was the successful party on the motion. Furthermore, she had served an offer to settle on July 20, 2021 which did not expire nor was it withdrawn. The respondent submits that the order obtained was more favourable for the respondent or at least as favourable as the offer she served. She had offered to drive the child to the applicant’s house after school on the applicant’s parenting weeks Monday through Thursday. Accordingly, she argues that she is entitled to partial indemnity costs up until and including July 20, 2021 and full indemnity costs thereafter. She further submits that the amount of costs claimed is fair and reasonable, that the applicant’s motion was ill-conceived and that the applicant’s positions taken were unreasonable. The amount sought is what the applicant could have expected to pay in the event that he was unsuccessful.
[5] The applicant takes the position on costs that, while he acknowledges that the respondent was the more successful party, full recovery of costs is inappropriate, that she did not “beat her Offer to Settle”, that her conduct during the proceeding should be discouraged and that in considering the relevant factors for the court’s consideration, the court should view the result as divided success. The applicant further argues that he had taken a reasonable approach to trying to resolve the issues, that the respondent did not act reasonably and that the offer to settle did not cover a crucial part of the decision with respect to before and after school care. In the result, the court should order that each party bear their own costs or that if an amount of costs is ordered, it be deducted from the amount of $8,000 costs still owing by the respondent.
ANALYSIS AND THE LAW
[6] The jurisdiction of this court to award costs is found in s. 131(1) of the Courts of Justice Act, R.S.O. 1990, C. 43, as amended. The costs of a case are in the discretion of the court and the court is to determine by whom costs shall be paid and the amount that should be paid. The fixing of costs is not a mechanical exercise based solely upon a calculation of hours and rates. The objective in awarding costs is to fix costs in an amount that is “fair and reasonable for the unsuccessful party to pay in a particular proceeding”: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Zesta Engineering v. Cloutier (2002), 2002 45084 (ON CA), 164 O.A.C. 234 (C.A.); Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R.(4th) 440 (Ont. C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltrek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).
[7] Rule 57.0(1) of the Rules of Civil Procedure outlines the factors to be considered in exercising the court’s discretion under section 131. Rule 24 of the Family Law Rules addresses the issue of costs and provides a “full framework” for the award of costs in family proceedings: see Biant v. Sagoo, 2001 28137 (ON SC), [2001] O.J. No. 3693, 20 R.F.L. (5th) 284 (Ont. S.C.J.). As Benotto J.A. said in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 at para. 11:
The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provided for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involve a family.
[8] As a result, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution. For example, in Beaver v. Hill, 2018 ONCA 840 at paras. 9-11, Nordheimer J.A. noted that there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs. Rather Rule 24(12) outlines appropriate considerations in fixing the quantum of costs.
[9] Rule 24(1) of the Family Law Rules provides a presumption that a successful party is entitled to costs of the motion or application. If success is divided, a court may apportion costs as appropriate: see Rule 24(6). Rule 24(4) provides that “Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.” Rule 24(5) outlines: “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 any offer the party withdrew or failed to accept. Rule 18(14) deals with costs consequences where a party delivers an offer of settlement. Rule 24(12) outlines the following factors for consideration by the court in determining the amount of costs:
24(12) In setting the amount of costs, the court shall consider,
(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 rate,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
[10] Generally, in family proceedings the same approach to the issue of costs applies as in other areas of litigation and costs will usually follow the event. However, the court may exercise its discretion to order otherwise or to reduce the award. Sometimes that is because it is difficult to say which party has been more successful because of the range of issues involved. Furthermore, success is only one factor. For example, in Andrews v. Andrews (1980), 1980 1913 (ON CA), 120 D.L.R. (3d) 252 (Ont. C.A.), the court identified a number of factors including the conduct of the parties prior to and during the litigation and made reference to income and assets of each party, their ability to bear their own costs and the effect of an award of costs on the ability of the party to meet the obligations imposed by the judgment. While this case pre-dates the Family Law Rules framework for costs, some of the principles are still applicable.
[11] As Epstein J.A. said in Mattina v. Mattina, 2018 ONCA 867 at para. 10: “This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999) 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22…”
DECISION
[12] Applying the principles I have outlined and, in particular, those factors in Rule 24 which take into account the complexity of the matter, the conduct of the parties, the ability to pay costs and the overriding objective to fix costs that are fair and reasonable for an unsuccessful party to pay in the particular proceeding, I exercise my discretion and deem this is an appropriate case in which to order costs.
[13] As for the amount of costs to be paid, the respondent was successful in her position on the application concerning the choice of the child’s school. Her offer to settle did not address the issue of before and after school care for the child. As the court wrote in Scipione v. Del Sordo, [2015] O.J. No. 5130, 2015 ONSC 5982 (Ont. S.C.J.) at para. 68, most family court cases involve multiple issues and applying the rule regarding “divided success” requires a contextual analysis. A court may apportion costs according to success on discreet issues in the trial: see Sarkozi v. Pereira, [2012] O.J. No. 5553, 24 R.F.L. (7th) 169 (Ont. S.C.J.) at para. 3. In my view, because the offer did not address all issues, the typical effect of an offer to settle would not apply. However, in keeping with Rule 24(5), I consider the offer made by the respondent in the overall assessment of the conduct of the parties in the proceeding which is a relevant factor. I am also aware of the applicant’s offer to settle which included that the child be enrolled at Corsair Public School but that the applicant assist with some of the driving of the child to Mississauga when she was having parenting time with the respondent provided that his schedule permitted this and that the respondent was working.
[14] I further find that the respondent has acted unreasonably and has demonstrated behaviour in the past which has involved failing to communicate with the applicant regarding the child’s health and education issues, specifically, why she was absent from school and late so many times, undermining the relationship of the child with the applicant and failing to promote contact between the child and the applicant. This kind of conduct is not in the best interests of the child and must be deterred. Costs is a way to deter unreasonable conduct: see Cantave v. Cantave, [2014] O.J. No. 5036, 2014 ONSC 5999 (Ont. S.C.J.). However, the applicant is not without fault. The applicant proposed a plan for the child which did not take into account her issues with speech and proposed a French immersion school which would have taken the child out of the area where she had been living.
[15] I also consider the amount of costs that are being claimed by the respondent. I note that the amount claimed by the respondent of $11,808.50 reflects an amount on a mainly full indemnity basis. I also note that the applicant’s Bill of Costs outlined an amount of $12,059.10. Thus, it can be said that the amount claimed by the respondent is an amount that the applicant could reasonably have expected to pay if he were unsuccessful. It would seem that a claim of costs in the amount of approximately $11,000 for a motion of this kind complies with the principle of proportionality and is fair and reasonable in the circumstances. I also take into account that the applicant made an effort to negotiate the issue of costs with the respondent.
[16] In conclusion, even where the respondent was more successful in the outcome of this application, because of the unreasonable conduct of the parties throughout these proceedings and the failure to focus on the needs and best interests of the child in a meaningful way, I order that costs be awarded on a less than full recovery scale for fees and fix costs for fees in the amount of $8,000 in favour of the respondent but that the amount be deducted from the amount she owes to the applicant of $8,000. The amount of interest owing by the respondent on the $8,000 costs shall be forgiven. The applicant shall pay the relevant HST and disbursements to the respondent provided they are reasonable and necessary. I did not see disbursements in the Bill of Costs but would order them payable by the applicant if they were specifically associated with this application and have not been claimed in the Bill of Costs through an oversight. I also order the applicant to pay the relevant HST.
[17] To summarize, having considered the factors outlined in Rule 24, I make an award of costs which I deem fair and reasonable in the circumstances and fix costs in the amount of $8,000 for fees payable by the applicant which shall be deducted from the amount of costs outstanding of $8,000 owing by the respondent. Reasonable and necessary disbursements and relevant HST shall be paid by the applicant to the respondent within 30 days.
Himel J.
Date: August 31, 2021
COURT FILE NO.: FS-16-408402 DATE: 20210831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YEVGEN MOKHOV Applicant
– and –
NATALIYA RATAYEVA Respondent
REASONS FOR DECISION ON COSTS
Himel J.
Released: August 31, 2021