Court File and Parties

COURT FILE NO.: 20-274 DATE: 2022/04/14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tania Thauvette, Applicant AND: Michael McGregor, Respondent

BEFORE: The Honorable Justice Laurie Lacelle

COUNSEL: Christopher Giggey, Counsel for the Applicant Respondent is self-represented

HEARD: By written submissions dated February 4th, 2022, and February 11th, 2022

Endorsement

[1] The Applicant Ms. Thauvette seeks costs in the amount of $5,866.71 (inclusive of disbursements and HST) following my Ruling on a motion and cross-motion heard in the fall of 2021. The Respondent, who is self-represented, did not file submissions in advance of Ms. Thauvette, as contemplated by my ruling. He did file reply submissions, however. He takes the position she should not be reimbursed for any of her costs.

[2] While my Ruling on the motions dealt primarily with the issue of s. 7 expenses, the motion and cross-motion addressed a number of additional issues. At the hearing of the motion, a number of those issues were resolved on consent, including: primary residence for the children; the identification of a reunification counsellor and terms for her payment; payment of table child support by the Respondent; exclusive possession of the matrimonial home; and the joint retainer for an update to the s. 30 assessment completed by Ms. Barbara Mitchell. However, the materials prepared for the motion had addressed all these issues.

The governing principles

[3] Rule 24 of the Family Law Rules governs the court’s approach to awarding costs.

[4] Subrule 24(1) addresses entitlement to costs and sets out the presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[5] Subrule 24 (12) provides that 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.

[6] Subrule 24(5) provides further direction as to how a court may determine whether a party’s behaviour has been unreasonable. It directs the court to examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.

[7] The importance of offers to settle, and the costs consequences associated with them, are further clarified in Rule 18. Subrule (14) provides that a party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if certain conditions are met. One of those conditions is that the party who makes the offer obtains an order that is as favourable or more favourable than the offer. Regardless, pursuant to subrule (16), when the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

[8] Further guidance as to the factors applicable to the exercise of the court’s discretion in awarding costs is found in the jurisprudence. In Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.), the Court of Appeal for Ontario confirmed at para. 8 that “modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants”.

[9] These principles were more recently affirmed in Mattina v. Mattina, 2018 ONCA 867 at para. 10, which also confirms that

Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly: Family Law Rules, r. 2(2); E.H. v. O.K., 2018 ONCJ 578 (Ont. C.J.), at para. 8; Sambasivam v. Pulendrarajah, 2012 ONCJ 711 (Ont. C.J.), at para. 37. And Rule 24(12) 1, which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award.

[10] Ultimately, the amount of any costs award is within the court’s discretion having regard to these Rules and principles.

The positions of the parties

[11] In support of her position, the Applicant emphasizes a number of circumstances, including the following:

a. The issues in the case, while not legally complex, were of great importance to ensuring the well-being and stability of the children; b. Overall, the Applicant mother was the more successful party on the father’s motion and her cross-motion; c. The reunification counselling issue was narrow since the only real issue was who might perform the counselling. Given the background, and the counsellor ultimately selected, the father cannot be found to have been successful on this issue; d. The father refused to consent to an order for table support even though he was making payments (the Applicant presumes this was to avoid the involvement of the Family Responsibility Office) and insisted on the engagement of a counsellor who had refused to become involved. The father also did not update his financial statement, claimed relief in his affidavit which was not enumerated in his Notice of Motion. Finally, he failed to accept severable parts of the Applicant’s offer to settle, and failed to make any offer to settle of his own. All this behaviour is relevant; e. With the exception of one part of her offer to settle (relating to s. 7 expenses), the Applicant obtained orders that were as favourable as those set out in the remaining parts of her offer to settle (with one minor deviation relating to Part A). The offer allowed for severable acceptance of its terms without costs consequences and was made three days in advance of the hearing of the motions as required by subrule 18(14) of the FLR; f. The conditions of rule 18(14) have been met; g. The total bill of costs for the motion and cross-motion was $12,960.54, and the time spent on the motion and counsel fees were reasonable given that two separate motions were involved and the father’s motion raised 26 prayers for relief; h. Having regard to the mother’s overall success rate, the father’s unreasonable behaviour, and the unaccepted and severable offer to settle, counsel submits that the Respondent father should be ordered to pay $5,866.71 (inclusive of disbursements and HST) to the Applicant forthwith. This would send the message that the Respondent is not at liberty to litigate with impunity.

[12] For his part, the Respondent emphasizes a number of issues. The following submissions are relevant to the issue of costs:

a. The Respondent is paying for the entirety of reunification counselling at the moment at a rate of $1500-$2000 per month; b. The Respondent says he was forced to litigate the motion to ensure the Applicant’s compliance with the order of Justice Champagne dated August 4, 2021, which ordered reunification counselling; c. The Respondent was successful in obtaining an order for an update of the s. 30 assessment and assignment of a reunification counsellor; d. The Applicant was unsuccessful in the claim for s. 7 expenses; e. The Respondent submits that the Applicant mother should not be reimbursed for an excessively long non-conforming motion where she provided insufficient financial disclosure resulting in the denial of her motion.

Analysis and Decision

[13] I find it is fair, reasonable and proportionate that the Respondent Mr. McGregor pay $5,866.71 (inclusive of HST) in costs to the Applicant. I arrive at that conclusion given the following findings:

a. Overall, having regard to all the issues raised in the motion and cross-motion, and not only the issues that resulted in my written ruling, the Applicant mother was the more successful party. She is entitled to be reimbursed for some of her costs; b. The most significant factor in setting the amount the Applicant should be reimbursed is the fact that she made a severable offer to settle and none of its terms were agreed to by the Respondent, even though they were consented to the first day of the hearing. Further, the Respondent made no offer to settle of his own. While I appreciate that the Respondent is self-represented, he must still govern himself in accordance with the expectations created by the Family Law Rules. Litigants must do what they can to settle the issues between them. The costs rule supports that objective; c. The Respondent raises the issue of the mother’s cross-motion as having been “non-conforming”. This issue was addressed at the hearing of the motion and forms no part of my analysis on this issue; d. I agree that the issue regarding the reunification counsellor was narrow and might have been resolved outside of court had the Respondent not insisted on a counsellor who was not willing to become involved. This issue did not have to be addressed in court because the Applicant was opposed to the counselling (it had been ordered earlier with her consent) or in breach of the order of Justice Champagne. I do not agree with the Respondent’s submission that litigation was required to ensure compliance with Justice Champagne’s order; e. The Respondent father has a significant income and as pleaded by the Applicant, there are also net proceeds from the sale of the parties’ cottage which remain in trust. I appreciate that the father is currently paying the expenses for reunification counselling on his own at the moment. Nevertheless, he has the ability to pay a costs award, particularly given the funds currently in trust; f. Given the issues and their importance, the Bill of Costs submitted by the Applicant is reasonable. She seeks to be reimbursed only for a portion of those costs, which is an appropriate and reasonable position given the outcome on her s. 7 claim.

Conclusion

[14] I find that it is fair, as well as reasonable and proportionate to the issues in the litigation, that the Respondent pay costs of $5,866.71 (inclusive of HST) to the Applicant forthwith. This order is consistent with the purposes of the costs rules.

The Honourable Justice Laurie Lacelle Date: April 14, 2022