COURT FILE NO.: FC-18-FS000383-0000
DATE: 2021-12-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.M.
Applicant
– and –
A.M.
Respondent
Emily Carroll, Counsel for the Applicant
Raymond Wrubel, Counsel for the Respondent
Amendment Notice: Amendments made on May 3, 2022. To prevent the identification of the parties in this matter, due to a restriction on the publication of the names of one or more of the parties in a related criminal court matter, this decision has been amended to remove the full names of the parties and participants and those name as well as school names have been replaced with their initials.
THE HONOURABLE MADAM JUSTICE D. PICCOLI
AMENDED COSTS ENDORSEMENT
[1] This endorsement follows the release of my decision of the trial on October 15, 2021 and is in regard to the issue of costs.
[2] The court heard a nine-and-a-half-day trial. The trial was about:
The parenting schedule for the two children during the school year.
The parenting schedule for the two children during Christmas and the summer.
What school should the children attend.
4 Where shall the children be picked up and dropped off at the beginning and end of a parent’s parenting time.
How will decisions be made about the children’s education.
What amount of child support is to be paid and by whom from January 2018 onwards.
[3] Following the trial, I decided that:
The Applicant Father shall have the children in his care during the school year every Tuesday from after school, or 3:30 p.m., as the case may be, to Thursday to school, or 9:00 a.m., as the case may be. In addition, the children shall be in his care on alternate weekends from Fridays after school, or 3:30 p.m., as the case may be, to Monday to school, or 9:00 a.m., as the case may be. The children shall otherwise be in the care of the Respondent Mother.
The parties shall share the children’s Christmas school holidays equally. In even numbered years, the Father shall have the first week of the holiday break (save and except Christmas Eve, Christmas Day and Boxing Day) and the Mother shall have the second week of the holiday break (save and except Christmas Eve, Christmas Day and Boxing Day). The reverse shall occur in odd numbered years.
The parties shall share the summer holidays equally. The parent in whose care the children are to be in on the weekend following the last day of school shall have the children in his or her care from the Friday after school until the following Friday at 5:00 p.m. This week-about schedule shall continue until the weekend before the children are to return to school. The parent who has care of the children may enroll the children in summer camps or other activities without the need to obtain consent of the parent, so long as said activities take place in the province of Ontario. The parent enrolling the children in activities during his and her week of summer care shall be fully responsible for the cost of said activity without contribution from the other parent.
On days that the exchanges are not on school days, the Mother shall deliver the children to the Father at the commencement of his parenting time and the Father shall deliver the children to the Mother at the commencement of her parenting time. Should the parties move a farther distance than they currently reside from each other, this provision shall be reviewed.
For so long as the Father resides in the catchment area of F.G.P.S, the Father shall make the decision as to where the children attend school. All other major decisions involving education shall be made jointly by the parties. In that regard, the parties shall confer and consult with each other, as well as seek the advice of a third-party professional where applicable.
If childcare is needed during a parent’s time with the children, the parent in whose care the children are in is responsible to provide and pay for the childcare.
The parent in whose care a child(ren) is in shall be responsible for the cost of pizza day/milk day and any such expenses should that parent chose to enroll the child in such an activity.
If the children are supplied chrome books or electronic aids or teaching tools, the children shall take these items back and forth to their parents’ homes.
Effective October 31, 2021, there shall be no child support payable by either party to the other.
There shall be no retroactive payment or readjustment of child support, which includes s. 7 expenses.
There shall be no repayment of the Ontario Child Benefit or the Canada Child Benefit.
[4] The Applicant Father seeks $40,000.00 in costs, inclusive of disbursements and HST. He incurred $56,844.61 in costs, not including the time spent for his costs submissions.
[5] The Father seeks costs for the following reasons:
He believes he was successful on the majority of the issues.
He made reasonable offers to settle during the proceeding in an effort to avoid litigation. He states that he was more successful at the trial than his last offer of September 3, 2021.
He asserts the Mother was unreasonable throughout the proceedings and caused significant costs and delay to the parties. In that regard he points to the following:
(a) her request for child support for her child, A.R.P, in her Amended Answer of January 2019 which was not abandoned until her opening statement for trial;
(b) her refusal to resolve holidays prior to the trial;
(c) her refusal to utilize Our Family Wizard prior to trial despite this being one of the Office of the Children’s Lawyer (“OCL”) recommendations;
(d) her position regarding the children’s attendance at school and in particular her refusal to allow the children to attend the school that they had been at and bringing a motion at the commencement of trial; and
(e) her refusal to attend mediation at By Peaceful Waters in 2017 despite her prior agreement to do so.
- The Mother made two offers of settlement (in her settlement conference brief of February 23, 2021) and on September 7, 2021, neither of which meet the criteria of Rule 18 offers and neither of which were reasonable.
[6] The Respondent Mother’s position is that no costs should be ordered and that each party should bear his and her own costs. The Mother submits that costs should not be awarded to either party as there was divided success. The Mother also states she acted reasonably in adopting the position of the OCL. She asserts that if the Court is to order costs, the costs requested by the Father are excessive and not warranted given the divided success. She also states that an award of costs would negatively affect the children who are in her care for more than 50% of the time.
[7] She points to the following:
(a) the Father was eventually unsuccessful with respect to virtually all of the relief sought by him in his motion to change of May 2018;
(b) her offer to settle reflected the parenting schedule recommended in the OCL report;
(c) because of the outstanding charges of sexual assault and assault against Father, the matter was unable to proceed on a timely basis;
(d) the COVID-19 pandemic caused further delays, none of which were the fault of the Mother;
(e) she was unable to find suitable housing in New Hamburg;
(f) comments she states were made by Justice Breithaupt Smith at a settlement conference on March 1, 2020. Those comments are disputed by Father and are not considered by me – they should not have formed part of Mother’s costs submissions; and
(g) the Father’s offers were not as favourable or more favourable than what I ordered. His February 22, 2021 offer required the children to attend school in Tavistock, his July 8, 2021 offer set forth a week about schedule. She asserts that his September 3, 2021 offer automatically cancels the two prior offers, especially in light of the incongruent terms within each offer. It is her position that the only offer open for acceptance was Father’s offer of September 3, 2021. She points out that the September 3, 2021 offer was not served at least seven days prior to the commencement of trial and as such there should be no cost consequences flowing from that offer. She also notes that she made a counteroffer dated September 7, 2021. She asserts that the parenting time I ordered is what is set out in her offer to settle.
[8] The Father refers to offers to settle the costs issue. This is not proper. I have disregarded both paragraph 13 and Schedule G of Father’s costs submissions.
[9] Similarly, I have not considered comments made by the Mother in her costs submissions as to what has occurred from her perspective in relation to schooling since the trial.
[10] For the reasons that follow, I order that Mother pay to Father the sum of $20,000.00 in costs.
Laws and Rules Respecting Costs
[11] The award of costs is within the discretion of the court: Courts of Justice Act, R.S.O. 1990, c. C.43, at s. 131.1.
[12] The modern costs rules are designed to foster four fundamental purposes:
(i) to partially indemnify successful litigants for the costs of litigation;
(ii) to encourage settlement;
(iii) to discourage and sanction inappropriate behaviour by litigants; and
(iv) to ensure that cases are dealt with justly pursuant to subrule 2(2) of the Family Law Rules: Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40.
[13] The Court of Appeal for Ontario has stated that proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12.
[14] Rule 24(1) of the Family Law Rules, O. Reg 114/99, states that a successful party is presumptively entitled to their costs.
[15] Rule 24(12) outlines the factors to be considered by a court in setting the amount of costs.
[16] Rules 24(4) and 24(5) direct the court to evaluate whether a party has behaved reasonably or unreasonably.
[17] Rule 24(6) allows the court to apportion costs as appropriate where success in a case is divided.
[18] If offers to settle which meet the requirements of Rule 18 were made, I am required to consider Rule 18(14), which sets out the costs consequences of failing to accept an offer, which refers to a written offer that was made at least seven days before the trial and obtains an order as favourable as or more favourable than the offer.
[19] Rule 18(15) provides that the burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party that claims the benefit of the rule.
[20] Rule 18(16) states that costs are at the discretion of the court and the court may consider any written offer to settle, the date it was made, and its terms, even if Rule 18(14) does not apply.
Did Either Party Behave Unreasonably?
[21] With respect to unreasonable behaviour, Rule 24(4) and Rule 24(5) read as follows:
SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY
(4) 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. O. Reg. 114/99, r. 24(4).
DECISION ON REASONABLENESS
(5) 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
(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24(5).
[22] I am guided by the specific wording with respect to “reasonableness” as contained within Rule 24(4): “a successful party who has behaved unreasonably during a case” and 24(5)(a): “the party’s behaviour in relation to the issues from the time they arose”, under the Family Law Rules.
[23] Bale J. in Kisten v. Kosewski, 2020 ONSC 3380, at para. 41 stated that “a practical application of this language requires some measure of causal connection between the offensive behaviour, and the conduct of the litigation. That is, except in extreme circumstances, the behaviour will have resulted in unnecessary steps or increased costs. To suggest otherwise, in this court’s opinion, would lead to unintended and sometimes absurd results.”
[24] I find that Mother has behaved unreasonably in the following ways:
Her position in regard to child support was unreasonable throughout the proceeding. She knew there had been changes in each party’s circumstances since the signing of the separation agreement.
As soon as Mother became aware that Father had purchased a home in the children’s school jurisdiction, reasonable efforts should have been made to ensure the children’s continued attendance at that school. Mother was so focused on her opinion that Father only moved to bolster his case and that she was defined as the primary residence parent that she forgot about what was best for the children.
Her refusal to utilize Our Family Wizard. This is particularly the case when she relies so heavily on the OCL recommendations regarding the parenting schedule but ignores this recommendation.
Her refusal to agree to a neutral pick up and drop off location despite the stress it was creating for the children.
Offers to Settle
[25] Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute. Severable offers to settle or separate offers to settle specific issues are particularly helpful in attempts to settle cases. See: Forlippa v. Khabemba, 2019 ONCJ 170, at para. 34.
[26] Pazaratz J. in Chomos v. Hamilton, 2016 ONSC 6232, 82 R.F.L. (7th) 395, at para. 19, stated that the court is not required to examine each term of the offer, as compared to the terms of the order, and weigh, with microscopic precision, the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order.
[27] In looking at the Father’s offers to settle as a whole, I make the following comments:
The Father’s February 2021 is not close to what I ordered.
The Father’s offer of July 8, 2021 is close to what I ordered at the trial. He was not successful regarding the school year parenting schedule. He reasonably offered to sever the schooling issue and only have that issue tried.
The Father’s offer dated September 3, 2021 was even closer to what I ordered at the trial. He was clearly more successful at the trial on the financial issues. His offer was as favourable or more favourable on all issues save and except the parenting schedule during the school year. Although this offer does not meet the Rule 18 criteria it is still an offer to consider.
The Father should have made severable offers to settle.
[28] In looking at the Mother’s offers to settle as a whole, I make the following comments.
Neither offer was a Rule 18 offer, but they are offers I can still consider.
The Mother’s offers do not come close to what I ordered.
[29] I find that overall, commencing in the summer of 2021, the Father’s offers to settle show a willingness to resolve issues and that on balance he was successful with respect to his September 3, 2021 offer. This though does not trigger Rule 18.
[30] With respect to the schooling issue, it was not until July 2021 that the Father moved within the children’s school catchment area. From that time, namely July 5, 2021, to the end of trial, his legal fees totaled approximately $37,000.00, which includes fees and HST. Those legal fees and disbursements relate to all issues.
[31] The Father should receive some of his costs but not all.
Quantum of Costs
[32] Once liability for costs has been established, the court must determine the appropriate quantum of costs. Rule 24(12) prescribes some of the factors which the court must consider in deciding the appropriate quantum.
[33] Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: see Beaver v. Hill, at para. 12.
[34] The assessment of costs is not a mechanical exercise. It is not just a question of adding up a lawyer’s dockets. The overall purpose is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case: Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, at paras. 16-21.
[35] In the cases of Serra v. Serra, Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), the Court of Appeal for Ontario set out the following additional general principles relating to quantum:
(i) Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.
(ii) Costs need to be proportional to the issues and amounts in question and the outcome of the case.
(iii) Amounts actually incurred by the successful litigant are not determinative.
(iv) In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.
(See also Selznick v. Selznick, 2013 ONCA 35).
[36] Rule 24(12) sets out specific factors the court should consider. These include:
a. Each party’s behaviour: Rule 24(12)(a)(i): In this respect, I have found that Mother acted unreasonably.
b. The time spent by each party: Rule 24(12)(a)(ii): On this topic, I am satisfied that all of the time set out in Ms. Carroll’s bill of costs as it pertained to the trial was required and reasonable.
c. Written offers to settle: Rule 24(12)(a)(iii): I have already commented on the written offers provided in this case.
d. The legal fees, including the number of lawyers and their rates: Rule 24(12)(a)(iv): In this respect, Ms. Carroll’s hourly rate of $250.00 is reasonable given her 2015 call to the bar. I also find that she properly utilized the articling student and law clerk.
e. Any other expenses: Rule 24(12)(a)(v): All of the disbursements claimed are reasonable.
Ability to Pay
[37] The Mother asks me to consider her own particular circumstances and that an order for costs would impact the children.
[38] A court must consider a party’s ability to pay costs: C.A.M. v. D.M. (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). However, while a party’s limited financial circumstances are a factor for the court to consider, it should not be used as a shield against any liability for costs and should only be taken into account regarding the quantum of costs: Snih v. Snih, 2007 CanLII 20774(Ont. S.C.).
[39] An unsuccessful party’s ability to pay must be assessed in conjunction with the successful party’s ability to absorb legal fees which should not have arisen in the first place: Scipione v. Del Sordo, 2015 ONSC 5982, at para. 138.
[40] The Mother has four adults (including herself) in her household, all of whom are receiving an income. Her income well exceeds that of Father. Father lives with one other income earner. If she is struggling financially that is because of choices she made.
[41] In all of the circumstances I find that it is fair and reasonable that the Mother pay to the Father the sum of $20,000.00 in costs.
Date: December 31, 2021