COURT FILE NO.: FC-20-1306 DATE: 2022/04/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.W., Applicant AND N.A.-Y., Respondent

BEFORE: Blishen J.

COUNSEL: Diana Carr, for the Applicant Ceilidh Henderson, for the Respondent

HEARD: In Writing

Costs Endorsement

Introduction

[1] The Applicant father’s motion requested an order for increased parenting time by implementing the interim recommendations of the OCL SW. Those recommendations included a gradual transition over an eight week period to equal parenting time on a 2-5-5-2 schedule for the 2 children of the relationship.

[2] The Respondent mother contested the motion and argued there should be no increase in the father’s parenting time. The existing temporary order should continue until the outcome of the father’s criminal trial and a possible trial in this court.

[3] After considering and weighing all the relevant evidence, including the observations, interviews, and conclusions of the OCL assessor, along with the factors applicable to this case in the legislation and case law, I did not grant the order requested by the father nor did I dismiss the motion. I found it in the children’s best interests to increase the father’s parenting time to add an additional overnight every 2nd Friday, additional hours on alternate Sundays and an additional half hour on alternate Saturdays.

Positions of the Parties

[4] The Applicant father argues he was the more successful party on the motion and should therefore be entitled to some costs. He further argues the Respondent mother behaved unreasonably in making unsubstantiated claims against him and in not accepting the recommendations of the OCL. She did not cross-examine the assessor nor raise any concerns as to the process or the competence of the assessor. No Factum was filed for this long motion.

[5] Mr. W.’s total bill for fees and disbursements was $7006.78. He requests costs of $3500.

[6] The Respondent mother argues neither party was successful in obtaining the relief requested. The father was not granted an order implementing the OCL recommendations which was the specific relief requested in his Notice of Motion. The motion was not dismissed as requested by the mother. Both parties behaved reasonably and there was no bad faith. Therefore, she argues the parties should bear their own costs.

General Principles

[7] 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 pursuant to r. 2 (2) of the Family Law Rules, O. Reg. 114/99 as am. (FLRs). See Mattina v. Mattina, 2018 ONCA 867.

[8] Pursuant to r. 24 (1) of the FLR, 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] O.J. No. 330 (S.C.J.-Family Court).

[9] 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 CarswellOnt 2819, at para. 7 (Ont. S.C.).

[10] 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

[11] As noted above, neither party achieved exactly what was requested on the motion. Nevertheless, Mr. W was granted more parenting time with his children and therefore achieved partial success.

Offers to Settle

[12] Neither party served a formal offer to settle nor is there evidence of any informal offers.

Assessing Costs

[13] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See Beaver v. Hill, 2018 ONCA 840.

[14] Sub rule 24 (12) of the FLR 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.

[15] There was only one issue on this motion. Although very important to the parties and the children it was not complex.

[16] 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.

[17] Neither party argues bad faith in this case.

[18] Ms. A.-Y. does not argue that Mr. W. acted unreasonably. As noted above Mr. W. argues Ms. A.-Y. acted unreasonably by:

1. not accepting the recommendations of the OCL assessor who had extensive involvement with the family and had addressed all the mother’s concerns about the father,
2. not providing evidence of reason to find fault with the OCL recommendations,
3. not cross-examining the assessor or alleging or providing evidence of any fault with the process or competence of the assessor, and
4. not making an offer of a more gradual move towards the implementation of the OCL recommendations.

[19] The court found that implementation of all the OCL recommendations to move towards an equal time-sharing parenting schedule in eight weeks, before Mr. W.’s criminal trial and judgement, was not in the children’s best interests. Ms. A.-Y.’s argument that an outright implementation of all recommendations was premature was not unreasonable. That argument could be made without finding fault with the process or competence of the assessor.

[20] Ms. A.-Y. did not make an offer for a more gradual move towards increasing Mr. W.’s parenting time but neither did Mr. W. The fact that neither party made an Offer to Settle can be considered in determining reasonableness pursuant to subrule 24 (5)(a) of the FLR. The failure of either party to make any formal or informal offer to settle is unreasonable behaviour.

[21] Both counsel spent approximately 15 hours preparing for and arguing the motion which I find reasonable and proportionate. Counsel’s rates were also reasonable based on their years of experience. There were minimal disbursements.

Conclusion

[22] Assessing costs is “not simply a mechanical exercise”. See: Delellis v. Delellis and Delellis, [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.

[23] There must be flexibility in examining the factors in subrule 24 (12).

[24] As Mr. W. was successful in obtaining more parenting time with his children he is entitled to some costs. Considering all the circumstances including: Mr. W.’s partial success, the importance of the issue to the parties and children, the absence of any offers to settle, the reasonableness and proportionality of time spent on the single issue on the motion and the reasonable fees charged by both counsel given their years of experience, I find a fair and reasonable costs award to be $3000 inclusive of HST payable by the Respondent Ms. A.-Y. to the Applicant Mr. W. within 30 days.

Released: April 4, 2022 Blishen J.