COURT FILE NO.: FC-19-45
DATE: 2021/12/14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Robyn Eileen Vekeman, Applicant -and- Ryan Edmund Vekeman, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Christian Pilon, for the Applicant Respondent, Self-Represented
HEARD: In writing
COSTS ENDORSEMENT
[1] This costs decision determines costs of the Respondent’s motion heard on June 30, 2021. I am not dealing with costs related to the Applicant’s cross-motion for increased child and spousal support that I adjourned because it was not served until June 22, 2021, after the Respondent’s counsel had advised he would be away prior to the motion and needed the material earlier.
Respondent’s Position
[2] The Respondent seeks his costs on a substantial indemnity, if not a full indemnity basis. His costs total $7,593.60 inclusive of HST. His position is that he was the successful party on the motion, acted reasonably including by serving reasonable offers to settle, and that the Applicant acted unreasonably, and in bad faith, by failing to respond to communications, serving her material late, and including significant irrelevant material.
Applicant’s Position
[3] The Applicant’s position is that success was divided and therefore the parties should bear their own costs. If any costs are awarded against her, payment should be deferred to the determination of her motion for increased support. The Applicant’s position is that the Respondent’s motion was a waste of time and made in bad faith and that the Applicant has a limited ability to pay costs because the Respondent is not paying her appropriate support. The Applicant does not take issue with the quantum of the Respondent’s fees. Her bill of costs shows that her costs total $15,452, although it is apparent these costs include costs incurred with respect to the support motion, which I am not dealing with.
Factors in Determining Costs
[4] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules)[^1].
[5] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.
[6] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs[^2]. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party[^3].
[7] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
(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 behavior;
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.
[8] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).
[9] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably. 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.
[10] Rule 24(5) provides guidance on how to evaluate reasonableness. In deciding whether a party has behaved reasonably or unreasonably, the court shall examine:
(c) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(d) the reasonableness of any offer the party made; and
(e) any offer the party withdrew or failed to accept.
[11] Where the parties have divided success, the court may apportion costs as appropriate. (Rule 24(6)).
[12] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith. If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
Analysis
[13] I find the goals of a cost award are best met by ordering the Applicant to pay costs of the motion heard on June 30, 2021, fixed at $5,000, payable forthwith.
[14] I find that the Respondent was more successful on the motion than the Applicant, and achieved key success on the main issues, being an order for the sale of the matrimonial home and increased parenting time. The Respondent did not achieve all of the detailed orders that he was seeking on his motion, but he achieved success on the main issues of contention. He was the successful party on the substantial issues.
[15] I do not agree that the Respondent’s motion with respect to parenting was a waste of time and made in bad faith. As referenced in my endorsement on the motion (paragraph 36), I found that there needed to be an interim parenting time schedule, although I acknowledged that one child had not been attending the court-ordered scheduled parenting time under the previous order and it was expected that one of the other children would not either, at least pending the assistance and support of reunification counselling. To be clear, it is not the reunification counsellor’s role to set the parenting time schedule. That would be an improper delegation of the court’s decision-making role. It is for this reason that a parenting schedule needs to be in place for the reunification counselling to have a schedule to support.
[16] I am not reducing the award of costs because the Applicant’s lawyer required an adjournment of the May 27, 2021 motion date due to being called to trial on another matter. When reserving costs to the motion, Justice London-Weinstein commented in her May 27, 2021 Endorsement that she would not have ordered costs against either party for the adjournment as it was her view that both parties acted reasonably. Given this, I have simply included these costs in the total sought. This effectively makes the costs of the adjournment payable in the cause, which I find is appropriate.
[17] Similarly, I do not find that the Applicant’s claims with respect to her financial situation warrant a reduction in the costs award. The Applicant is receiving significant interim support, and her motion for an increase in support is outstanding. In the circumstances, in this case, notably the Applicant’s position on support, I also find that the goals of a cost award would not be achieved if the Applicant was insulated from the cost consequences of her role in this litigation by reducing an award of costs that is otherwise warranted. I also note that the Applicant ought to have expected that the Respondent would be incurring the level of costs that he did, given that her costs were approximately two times as much.
[18] I find that the Respondent acted reasonably in bringing his motion, which was contemplated, and reasonable, given the outcome of the criminal proceedings (with respect to parenting) and the length of time since separation (with respect to the sale of the house).
[19] The Respondent’s offers do not satisfy the requirements under Rule 18 to presumptively entitle him to full recovery of his costs but I do find that his offers support that he acted reasonably.
[20] The Applicant did not make an offer to settle the motion, which is unfortunate. The Respondent relies on this factor to argue that the Applicant acted unreasonably. I agree that in the circumstances on this motion, the Applicant’s failure to serve an offer to settle the motion is an aggravating factor with respect to costs.
[21] The parties both make various allegations that the other party, and their counsel, have acted improperly. I am not prepared to enter the fray on this issue, as I do not have the evidence before me to conduct a forensic audit of each side’s communications. I agree that the Applicant has provided some material that supports that the allegations made by the Respondent’s counsel do not reflect the whole story. I will leave it at that. I am not prepared to find that any of these various allegations impact the determination of costs on this motion, other than as referred to above.
Disposition
[22] On balancing all of the above, I find that the goals of a cost award are best accomplished in this matter by ordering the Applicant to pay the Respondent his costs of the motion heard on June 30, 2021 fixed at $5,000, payable forthwith. These costs are reasonable and proportional to the importance, nature, and complexity of the motion. This Order is made pursuant to the Family Law Rules.
[23] This Order shall bear post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”).
Justice P. MacEachern
Date: December 14, 2021
COURT FILE NO.: FC-19-45 DATE: 2021/12/14
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Robyn Eileen Vekeman, Applicant -and- Ryan Edmund Vekeman, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Christian Pilon, for the Applicant Respondent, Self-Represented
COSTS ENDORSEMENT
Justice P. MacEachern
Released: December 14, 2021
[^1]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867 [^2]: M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, at para. 40 [^3]: Berta v. Berta, 2015 ONCA 918 at para. 94