COURT FILE NO.: FS-21-222820

DATE: 20210004

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ADAM SHAW

Applicant

– and –

RENEE GAUTHIER

Respondent

Michael J. Stangarone and Stephanie Timerman, for the Applicant

Belinda Rossi and Bridget Bilski,

for the Respondent

HEARD: In Writing

COSTS ENDORSEMENT

P.J. Monahan J.

[1] In my August 30, 2021 Endorsement, I granted the Applicant’s motion that the parties’ two children attend school in person for the 2021-22 year at their current schools in Etobicoke. I also dismissed the Respondent’s motion that the children attend schools in-person in the Meaford, Ontario area, or that they be enrolled in virtual learning at their current schools in Etobicoke. The parties were unable to resolve the issue of costs and have made costs submissions in writing.

[2] The Applicant argues that he is presumptively entitled to his costs on the basis that he was the successful party on the motion. He seeks costs in the amount of $22,404, representing his substantial recovery costs up to the date of his August 17, 2021 Offer to Settle (which he argues mirrors the terms of my Endorsement), and his full recovery costs thereafter.

[3] The Respondent seeks costs be reserved to a later stage of the proceeding and determined at the same time as costs related to a separate motion dealing with a s. 30 assessment. She also argues that the Applicant’s costs are excessive as they are more than double her own costs. If costs are to be awarded, she argues that such an award should not exceed $9000, and she should be permitted to make payments over at least an 18-month period.

Relevant Legal Principles

[4] It is well established that modern family cost rules are designed to foster four fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly.[^1]

[5] Rule 24 (1) creates a presumption of costs in favour of the successful party.[^2] While consideration of success is the starting point in determining costs, this presumption does not automatically require that the successful party be awarded his or her costs.[^3] Entitlement to costs is subject to a variety of factors, including each party’s behaviour, the time spent by each party, whether one or both parties have behaved unreasonably, whether there has been bad faith conduct, and the nature of any offers to settle made by either party.[^4]

[6] While the Family Law Rules identify the relevant considerations, the key principles governing awards of costs in family law proceedings are proportionality and reasonableness. As Nordheimer J.A. stated in Beaver v. Hill,[^5] “[p]roportionality is a core principle that not only governs the conduct of proceedings generally, but is specifically applicable to fixing costs in family law matters.” This conclusion flows directly from the fundamental Boucher principle, applied by Ontario courts on innumerable occasions, that costs awards should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties.”[^6]

[7] There is no presumption that a successful party in a family law matter should receive costs that “generally approach full recovery”.[^7] However, the Rules do provide for an entitlement to full recovery of costs in specific circumstances, such as bad faith under Rule 24 (8), or besting an offer to settle under Rule 18 (14). That said, “full recovery” of costs does not necessarily equate to the amount legal counsel has billed the successful client, since the quantum of costs must always meet the test of proportionality and reasonableness in light of the importance and complexity of the issues at stake in the litigation.

Analysis

[8] The primary issue on these motions was where the parties’ two children would attend school in the 2021 – 2022 school year. This was an extremely important issue to both of the parties, and they each filed extensive evidence and argument on the motions. The Applicant was the successful party on that issue in that he obtained the precise order he was seeking, namely, that the children attend in-person at their current schools in Etobicoke. While the Applicant did not obtain all of the subsidiary relief he was seeking, the fact that he was successful on the primary issue means that he is presumptively entitled to his costs in accordance with Rule 24 (1).

[9] I further find that the Applicant met the terms of his August 17, 2021 Offer to Settle. Therefore, absent an order to the contrary, he is entitled to full recovery of his costs from that date, in accordance with Rule 18 (14).

[10] A further relevant consideration in this case is the manner in which the Respondent approached the issue of the children’s schooling for this year. In the summer of 2020, the Respondent requested a temporary modification in the children’s parenting schedule in order to accommodate the fact that she was at that time residing at her cottage property in Meaford Ontario. The Applicant was willing to accommodate the Respondent’s request in light of the fact that the children were then attending school virtually. He therefore agreed that during the weeks when the children were in the Respondent’s care, they could reside with her at her property in Meaford. But the Applicant wanted to ensure that it was clearly understood and agreed that this was a temporary arrangement only and that, once in-person learning resumed, the children would attend at that their current schools in Etobicoke. He therefore requested a written agreement to that effect, which was executed by the parties in November 2020. This agreement made it clear that the Respondent would be relocating to Toronto before the end of 2021, and that the children’s schools would remain the same.

[11] In the months following that Agreement, the Respondent gave no indication that she was contemplating changing the childrens’ residence or their schools. Then, on April 6, 2021, the Respondent announced to the Applicant (through a letter sent by her counsel) that she had decided to permanently relocate to Meaford and intended to enroll the children in schools in the Meaford area. The Respondent did not advance this as a proposal for discussion but, rather, as a decision she had already made unilaterally without consulting the Applicant. No explanation was provided as to how this decision was consistent with the November 2020 agreement. It was evident that the Respondent was simply repudiating that agreement, which had been executed just five months earlier.

[12] The April 6, 2021 letter from Respondent’s counsel indicated that she would commence court proceedings by April 19, 2021 if the Applicant did not agree with her change in parenting arrangements. Yet when the Applicant refused to agree, the Respondent took no steps to bring the matter before the court for resolution in a timely way. Instead, she left it to the Applicant to bring an urgent motion in early August, at which time the lack of certainty in the children’s schooling arrangements for the upcoming school year had become a matter of pressing concern.

[13] The Respondent argues that she proposed a s. 30 Assessment be undertaken by the OCL in May or June of 2021 in order to ascertain the wishes of the children, and that the Applicant unreasonably refused to accept her proposal. The difficulty with the Respondent’s position on this issue is that, by waiting until May or June 2021 to make this proposal, there was no prospect that any such assessment could be completed prior to September 2021. The appropriate time to have made such a proposal was early in 2021, when there was a reasonable possibility that the assessment could have been completed well in advance of the school year.

[14] In contrast, I find that the Applicant conducted himself in a reasonable manner throughout this proceeding. In 2020, he agreed to accommodate the Respondent’s request for a temporary adjustment in the parenting schedule. Although he insisted that the children resume in-person learning at their schools in Etobicoke commencing September 2021, this reflected the clear understanding of the parties as set out in two prior agreements, including the parties’ 2014 Separation Agreement. Moreover, in his August 17, 2021 Offer to Settle, the Applicant agreed with the Respondent’s proposal to undertake a s. 30 assessment.

[15] I find that these circumstances reinforce the Applicant’s entitlement to costs on this motion.

[16] The Respondent asks that a costs order be delayed until costs of a separate motion dealing with a s.30 assessment are resolved. I am advised that the parties have agreed to appoint a s. 30 assessor and that the costs of a motion on that issue (which was scheduled for early September 2021 but did not proceed) have been reserved.

[17] I see no reason why a determination of costs in the matter before me should be adjourned or somehow subsumed into the determination of costs arising from the motion on the s. 30 assessor. Pursuant to an earlier order of Kraft J., the issue of a s. 30 assessment was expressly not to be argued in the motion before me on August 24, 2021. I have no knowledge of when, if or how costs on the separate s. 30 assessment motion will be dealt with. Nor is there any evidence indicating that awarding costs in this matter would somehow prejudice the costs positions of the parties on the motion dealing with the s. 30 assessor.

[18] I therefore find that I should proceed to make a costs determination now, rather than delay or adjourn this issue in order to await a costs ruling on the motion dealing with the s. 30 assessor.

[19] Based on the circumstances outlined above, I find that the Applicant is entitled to his costs on this motion. Moreover, having met the terms of his August 17, 2021 Offer to Settle, he is entitled to full recovery of his costs from that date onward.

Quantum of Costs

[20] As noted above, the Respondent argues that the costs sought by the Applicant are excessive. She takes issue with the fact that two lawyers were involved in the case on behalf of the Applicant and that they spent a combined of total of approximately 60 hours on the motion. In contrast, her counsel spent a total of approximately 20 hours.

[21] In his costs submissions, the Applicant points out that the Respondent filed lengthy affidavits containing numerous allegations of improper conduct on his part, including that he drinks excessively when the children are in his care and that he has engaged in harassing and controlling behaviour. Given the seriousness of these allegations, it was necessary for Applicant’s counsel to take the time necessary to marshal evidence and argument in rebuttal.

[22] I agree with the Applicant that, given the length and scope of the affidavit material filed by the Respondent, it was appropriate and necessary for Applicant’s counsel to spend a considerable amount of time in preparing an appropriate response. It is therefore reasonable to conclude that Applicant’s counsel would have been required to devote substantially more time to this matter than did counsel for the Respondent.

[23] I would also point out that approximately 80% of the Applicant’s costs were incurred after the August 17, 2021 Offer to Settle. Because the Applicant met the terms of that Offer, he is entitled to full recovery of those costs.

[24] That said, having reviewed the dockets submitted by Applicant’s counsel, it does appear that there may well have been some modest duplication in effort through the involvement of two experienced counsel on this file. This is relevant since, as noted above, “full recovery” of costs does not necessarily or automatically equate to the fees a lawyer bills a successful client. Considerations of proportionality and reasonableness remain relevant even in the context of a successful party who has met or exceeded an Offer to Settle.

[25] Considering all the relevant circumstances, including the fact that the Applicant met his August 17, 2021 Offer, I find that a just and reasonable costs award in this case to be $15,000, inclusive of HST and disbursements.

[26] The Respondent argues that she had had to find accommodation in Toronto on an urgent basis in order to comply with my order that the children resume attendance at their schools in Etobicoke. She further argues that the cost of the retainer for the s. 30 assessment is over $22,000, which will be split between the parties. Despite the fact that she earns an annual income of over $120,000, she argues that she simply does not have the funds to satisfy an immediate award of costs.

[27] I recognize that the Respondent was required to immediately obtain accommodation in Toronto in order to comply with my order. But the fact that the Respondent had very little time to arrange accommodation in Toronto was due in large part to the fact that she took no steps to have the court deal with the matter in a timely way. Through her decision to repudiate the parties’ prior agreement and unilaterally relocate the children to Meaford, the Respondent left the Applicant with no other option but to bring a costly motion on an urgent basis. The Respondent having been unsuccessful in that motion, it would be manifestly unfair to require the Applicant to bear the majority of those costs himself.

[28] At the same time, I am prepared to grant the Respondent a reasonable amount of time to satisfy the costs order of $15,000. I therefore order the Respondent to pay the costs award of $15,000 in six equal installments of $2500, with the first such payment due on December 1, 2021, and the remaining five payments due on the first day of the subsequent five months (i.e. from January to May, 2022).

P. J. Monahan J.

Released: October 4, 2021

Shaw v. Gauthier, 2021 ONSC 6590

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ADAM SHAW

Applicant

– and –

RENEE GAUTHIER

Respondent

COSTS ENDORSEMENT

P.J. Monahan J.

Released: October 4, 2021

[^1]: Serra v. Serra, 2009 ONCA 395 at para. 8; Mattina v Mattina, 2018 ONCA 867 at para. 10.

[^2]: Berta v. Berta, 2015 ONCA 918 at paragraph 94.

[^3]: Mattina at paragraph 13.

[^4]: Rule 18 (14) & (16); Rule 24.

[^5]: 2018 ONCA 840 at paragraphs 12 and 19.

[^6]: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O. R. (3rd) 291 (Ont. C.A.) at paragraph 24.

[^7]: Beaver v. Hill, at paragraph 13.