Court File and Parties
Court File No.: FC-12-1270 Date: 2022-03-04 Superior Court of Justice - Ontario
Re: Scott Junior, Applicant And: Amy Thomson, Respondent
Before: The Honourable Madam Justice M.E. Vallee
Counsel: Victoria Hanton, Counsel for the Applicant Ladan Korhani, Counsel for the Respondent
Heard: In Writing
Endorsement on Costs
Background
1This motion concerned the RM’s failure to take the parties’ child to school. When she was in her mother’s care, she was absent for 80% of the time, often for full weeks. The court determined that the child ought to reside with the AF during the school week, among other things.
Positions of the Parties
2Rule 24(12) of the Family Law Rules, O. Reg. 114/99 sets out criteria that the court must consider in setting costs amounts. The AF was successful on this motion. He states that he made six different r. 18 offers to settle and attached copies: one on October 27, 2021 with 5 different parenting proposals and one additional parenting proposal on December 8, 2021 and one informal proposal on October 20, 2021. He withdrew one offer to settle prior to this matter proceeding on January 6, 2022, namely, option 5, paragraph 17 of his offer to settle dated October 27, 2021. The other five offers to settle did not expire and were not withdrawn before the motion began. He met or beat all offers that he made. At the motion, he received a result that was more favourable than his offers to settle. He states that pursuant to r. 18(14), he is entitled to full recovery costs as of October 27, 2021.
3The AF states that the RM made one formal offer to settle and two informal proposals. She did not beat any of her offers.
4To bring this matter before the court, the AF had to take a number of steps. He commenced an application. He brought a 14B motion on notice requesting leave to bring an urgent motion prior to a case conference. On October 29, 2021, Justice Bowell granted leave for an urgent case conference rather than a motion. On December 8, 2021, Justice Douglas conferenced the matter and noted that the issue was not resolved. He adjourned the matter to a motion on January 6, 2022. On that date, the RM requested an adjournment to retain counsel. Justice Speyer granted the adjournment and stated that the related costs were deferred to the motion judge. She noted that the AF’s counsel was present for five hours. AF’s counsel states that the RM was consulting with duty counsel. This court heard the motion on January 20, 2022.
5The AM states that a costs order against her would be devastating. She states that no costs should be ordered. She states that she left her previous employment “due to medical reasons” although they are not stated. I note that she had employment as a nurse but was terminated. She already has two children and is expecting a third. She is not receiving maternity benefits yet. She states that she is not likely to return to work for another year after she gives birth. She states that costs for the case conference should not be allowed. I reject this argument. The only reason for the conference was to deal with this issue.
6The AF states that as an RN, the RM has the potential to earn more than he does. 1 He also did not have the means to litigate. He earns $17 per hour. He sold his car for $4,000, his dirt bike for $3,500, cashed in his retirement pension for $14,000 and borrowed money from his mother. He dissipated all of his assets to fund the litigation. The AM is not paying child support. He states that she attends exchanges in a new Tesla which he understands was a gift from her father.
7The RF states that according to Snih v. Snih, a party’s limited financial circumstances will not be used as a shield against liability for costs. This is particularly important when costs are higher as one party has acted unreasonably and is the author of his/her own misfortune. In Takis v. Takis, the court found that the Respondent’s lack of income and assets, though a relevant consideration, could not be used as a shield in unnecessary litigation. Parties need to be held accountable for their conduct in litigation.
Analysis
8While a party’s ability to pay costs is a factor that the court takes into account, the AM acted unreasonably. She prioritized her parenting time with the child over the child’s best interest in attending school. School attendance is very important. Only at the motion did she state that she would drive the child to school and back on her parenting days. She made allegations about the AF’s mental health based on dated information despite the fact that prior to the motion, he had significant parenting time with the child. A party’s use of dated mental health issues as a weapon against the other party is completely inappropriate. The RM ought to have considered her exposure to costs. The date when the RM returns to work is her decision.
9The RM states that the fees to prepare costs submissions, $2,434.02, are unreasonable. I disagree. The bill of costs is helpful because it is detailed and breaks down the time spent and fees for the various steps of this matter including the urgent motion, attendance at the urgent case conference, attendance at the first motion date on which the court adjourned the matter and the actual motion attendance. Some legal research was required for the submissions.
10I find that the time spent by the AF’s counsel for this matter was reasonable as is her hourly rate. I note that no fees are requested for preparation and issuance of the application.
11The amount of costs is determined by balancing all of the factors set out in r.24(12) of the Family Law Rules and by taking into account the principles set out in Boucher v. Public Accountants, 71 O.R. (3d) 291.
Disposition
12Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness. Based on the above, in my view, a fair, reasonable and proportionate costs award for this motion is $17,299.51, all inclusive, which the RM shall pay to the AF within 60 days.
VALLEE J. Date: March 4, 2022