Court File and Parties

COURT FILE NO.: FS-20-260 DATE: 2021-11-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Joshua Dauber, Applicant AND: Christine Denise Dauber, Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Jessica Polis, for the Applicant Jayarajani Nadarajah, for the Respondent

Costs Endorsement

[1] The parties have been unable to resolve the issue of costs and have each delivered written submissions on costs.

Positions of the Parties

[2] The applicant submits that he was the successful party on the motion and is presumptively entitled to an award of costs. He seeks costs on a full indemnity basis in the sum of $15,663.04 comprised of fees in the sum of $13,855.70, HST in the sum of $1,801.94 and disbursements in the sum of $5.40.

[3] The applicant points to his Offer to Settle dated May 18, 2021 in which he proposed settlement of the motion on the basis that the children be enrolled at Burford District Elementary school for the school year commencing September 2021.

[4] The respondent acknowledges that the applicant was successful on the motion but argues that the quantum of his claim for costs is disproportionate and unreasonably excessive. She points to specific examples in the applicant’s Bill of Costs which demonstrate this.

[5] The respondent also submits that she should not be held liable for the costs to address the adjournment on July 29, 221 which was necessitated by the report of the OCL clinician not being available. The respondent submits that the applicant brought the motion on for hearing prematurely.

[6] The respondent submits that the applicant ought to be entitled to costs of the motion on a partial indemnity basis in the sum of $910.

Guiding Principles

[7] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid."

[8] Pursuant to rule 24(1) of the Family Law Rules, the successful party is presumed to be entitled to recover costs. Rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.) at para 42).

[9] Rule 18(14) of the Family Law Rules provides that a party who makes an Offer to Settle at least one day prior to a motion or seven days prior to a trial, which did not expire, was not withdrawn and was not accepted, and obtains an order that is as favourable as or more favourable than the offer is entitled to costs to the date of service of the offer and full recovery of costs from that date, unless the court orders otherwise.

[10] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of rule 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[11] In M. (C.A.) v. M (D.) the Court of Appeal confirmed, at paras. 40-42, that:

(a) although the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act, they have not completely removed the trial judge's discretion;

(b) although the general provision, rule 24(1), enacts a "presumption" that the successful party is entitled to costs of the case it does not require that the successful party is always entitled to costs;

(c) a successful party may not obtain a costs award in his or her favour even in circumstances not falling within rule 24(4);

(d) there may be circumstances aside from the unreasonableness of the successful party's conduct that rebut the presumption; and

(e) the financial situation of the parties can be taken into account in setting the amount of the costs award either under rule 24 or rule 18 pursuant to the direction in sub rule 24(11) that the court take into account "any other relevant matter".

[12] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[13] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

[14] As recently emphasized by the Court of Appeal in Beaver v Hill, 2018 ONCA 840 at paras. 12-13, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs in family proceedings and a "close to full recovery" approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, e.g. bad faith under r. 24(8), or besting an offer to settle under r. 18(14).

Discussion

[15] As the successful party the applicant is presumptively entitled to costs in respect of the motion. This presumption has not been displaced.

[16] In my view, the applicant’s Offer to Settle does not attract an award of elevated costs. The Offer to Settle mirrored the relief sought by the applicant on the motion and did not contain an element of compromise. The issue respecting the school in which the children should be enrolled in for the current academic year presented a stark choice for the exercise of the court’s discretion with little or no scope for any middle ground. It would not be appropriate to reward the applicant with an award of elevated costs for offering to settle the motion on terms matching the relief he sought.

[17] I would not award costs for attendances related to the adjournment. The motion could not proceed due to the OCL clinician’s report not having been filed. The court was not prepared to proceed without the report, regardless of the position of either party. I would reduce the applicant’s full indemnity time calculation by $750 for this issue.

[18] As indicated above, proportionality and reasonableness are the touchstones for costs determinations in family law. In this case the court is hampered in gauging the respondent’s reasonable expectations respecting costs by her failure to file her own Bills of Costs.

[19] The motion was straightforward and dealt with only one issue, that of school enrolment. In the exercise of my judgement I would fix the fee component of the applicant’s costs on a partial indemnity basis at $6,000. HST on the fees is $780 and the disbursements are $5.40 resulting in a total of $6,785.40, rounded to $6,785.

Disposition

[20] It is ordered that the respondent pay to the applicant costs of the motion fixed in the sum of $6,785 within 30 days hereof.

D. A. Broad, SCJ.

Date: November 9, 2021