COURT FILE NO.: FC-09-227-1
DATE: 2021/10/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Patrick Bamford, Applicant
AND
Janna Mae Peckham, Respondent
BEFORE: Blishen J.
COUNSEL: Frédéric Huard, for the Applicant
Melanie Nylund, for the Respondent
HEARD: In Writing
COSTS ENDORSEMENT
Introduction
[1] This matter was heard as an urgent motion regarding the choice of school for the parties’ daughter, Zoe, who is 12 and was to start Grade 7 this September.
[2] The mother requested an order that Zoe attend Grade 7 in the French Immersion program at Dunning Foubert Elementary Public School in the mother’s school district.
[3] The father requested an order that Zoe attend Gisèle-Lalonde French Secondary Public School which is a homogeneous French School in the parties’ catchment area.
[4] Either school would be new for Zoe. The school she attended for the last five years ends at Grade 6.
[5] After considering and weighing all the factors applicable to this case as referenced in the legislation and case law, I concluded it was in Zoe’s best interests to attend Gisèle-Lalonde.
[6] At the end of my endorsement I noted the following:
[60] Justice H.J. Williams said in Turnbull v. Turnbull, 2018 ONSC 5060 at para. 124, “my inclination is to award either minimal or no costs in respect of the ‘choice of school’ issue. Both parents had legitimate positions; I do not consider either parent to have won or to have lost this motion.”
[61] I agree with this statement
Positions of the Parties
[7] Ms. Peckham argues that although she was the unsuccessful party, she behaved reasonably. She agrees with the statement of the court above that both parties had legitimate positions and neither parent should be considered to have “won” or “lost” the motion. Her Bill of Costs indicates a total of $4265.75.
[8] Mr. Bamford argues he was the successful party and there is a rebuttable presumption he is entitled to costs. He indicates he behaved reasonably while Ms. Peckham did not. He claims full recovery costs in the amount of $9,519.12 as reflected in his Bill of Costs.
General Principles
[9] Modern costs rules are designed to foster four fundamental purposes:
to partially indemnify successful litigants;
to encourage settlement;
to discourage and sanction inappropriate behaviour by litigants; and
to ensure that cases are dealt with justly pursuant to r. 2 (2) of the Family Law Rules O.Reg. 114/99 as am. (FLRs). See Mattina v. Mattina, 2018 ONCA 867.
[10] Pursuant to r. 24 (1) of the FLRs, there is a presumption that a successful party is entitled to costs. Consideration of success is the starting point in determining costs. See Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.-Family Court).
[11] Offers to settle are important and can be the yard stick by which to measure success. They are significant in determining both liability for costs and quantum. See Osmar v. Osmar (2000), 8 R.F.L. (5th) 387, at para. 7 (Ont. S.C.) and Lawson v. Lawson, 2008 CanLII 23496 (ON SC), 2008 CarswellOnt 2819, at para. 7 (Ont. S.C.).
[12] Although consideration of success is the starting point in determining costs, the successful party is not always entitled to costs. As noted by the Ontario Court of Appeal in Mattina v. Mattina:
An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, at para. 94.
Success
[13] Mr. Bamford was the successful party on the motion.
Offers to Settle
[14] Subrule 18 (14) of the FLRs states:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
[15] Pursuant to subrule 18(16), when exercising discretion over costs, the court may take into account any written offer to settle, the date it was made and its terms, even if subrule 18(14) does not apply.
[16] This motion dealt with one discreet issue – where Zoe should attend school in September. The parties took opposite positions as to what school would be in Zoe’s best interests. It would be difficult under the circumstances to make an offer with a compromise position.
[17] On August 31, 2021, prior to the hearing of the procedural motion to determine urgency on September 7, 2021, Ms. Peckham served a formal Offer to Settle which complied with the procedural requirements under R. 18 of the FLRs. Her offer was simply a restatement of her position that Zoe should attend Dunning Foubert Elementary School. There was no response to this offer by Mr. Bamford.
[18] No offer, formal or otherwise, was ever sent by Mr. Bamford. His counsel sent an email on August 3, 2021 suggesting Zoe be registered in Gisele Lalonde high school and asking Ms. Peckham’s thoughts. No response was received and documents for an urgent motion were prepared.
[19] Although Ms. Peckham did not obtain an order as favourable or more favourable than her offer, her efforts to resolve the matter based on an earlier decision of Justice Kershman dated August 13, 2013 were reasonable. The fact that she made a formal written offer will be considered in setting the amount of cost pursuant to R 24(12) (a) (iii). The fact that no written offers meeting the requirements of R 18 or otherwise, were made by Mr. Bamford will also be considered in setting the amount of costs.
Assessing the Quantum of Costs
[20] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See Beaver v. Hill, 2018 ONCA 840.
[21] Sub rule 24 (12) of the FLRs sets out the relevant factors in determining the quantum of costs:
SETTING COSTS AMOUNTS
(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 rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter. O. Reg. 298/18, s. 14.
[22] I note there was only one issue on this motion and although important to Zoe and her parents, it was not complex.
[23] In addition to the factors listed under r. 24 (12) an award of costs is also subject to r. 24 (4) pertaining to unreasonable conduct of a successful party, r. 24 (8) pertaining to bad faith, r. 18 (14) pertaining to offers to settle and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918 (at para. 94).
[24] Neither party argues bad faith in this case. There is no argument that Mr. Bamford’s behaviour was unreasonable. Mr. Bamford argues Ms. Peckham’s position that Zoe should attend French Immersion at Dunning Foubert Elementary School was unreasonable given her agreement when Zoe entered Grade 2 that she attend French school. I disagree.
[25] Circumstances have changed since Sept. 2016 when Zoe was 7 years old. She is now 12 years old, has not seen her father in 2 years and had to change schools this September in any event. Under the circumstances, Ms. Peckham’s position 5 years later in September 2021, was not unreasonable. She served a formal offer to settle based on her position.
[26] I referred this matter to the Office of the Children’s Lawyer with a recommendation that counsel be appointed for Zoe so she will have her own voice in these proceedings. Although her mother provided evidence as to Zoe’s views regarding which school she wished to attend, it is important that her views and preferences on this and other parenting issues be independent and be presented to the court by her own lawyer.
[27] Counsel for Ms. Peckham spent 13 hours preparing for and arguing the motion to determine urgency and the motion itself which I find reasonable and proportionate. In contrast Mr. Bamford’s counsel and his junior spent 33.1 hours which I find excessive given the nature of the motion on a single, discreet issue.
[28] Counsel’s rates were reasonable given their years of experience. There were no expert witness fees nor any expenses.
Conclusion
[29] Assessing costs is “not simply a mechanical exercise”. See: Delellis v. Delellis and Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345. In that case, Justice Aston indicated as follows at para 9:
Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.
[30] There must be flexibility in examining the factors in subrule 24 (12).
[31] As the successful party on the motion, Mr. Bamford is entitled to some costs. Considering all the circumstances including Mr. Bamford’s success, the importance of the issue to Zoe, the reasonableness of both parties’ positions, Ms. Peckham’s offer, the reasonableness and proportionality of time spent on the single issue on the motion and the difference in fees charged by both counsel, I find a fair and reasonable costs award to be $3000 inclusive of HST, payable within 60 days.
Blishen J.
Date: October 21, 2021
COURT FILE NO.: FC-09-227-1
DATE: 2021/10/21
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Patrick Bamford, Applicant
AND
Janna Mae Peckham, Respondent
BEFORE: Blishen J.
COUNSEL: Frédéric Huard, for the Applicant
Melanie Nylund, for the Respondent
COSTS ENDORSEMENT
Blishen J.
Released: October 21, 2021