Court File and Parties
Court File No.: FC-22-291 Date: 2022/07/04 Superior Court of Justice – Ontario Family Court
Re: Mark Thompson, Applicant And Vanessa Sorrenti, Respondent
Before: Madam Justice Sylvia Corthorn
Counsel: Alison Campbell, for the Applicant Megan Lepage, for the Respondent
Heard: In Writing
Costs Endorsement
Introduction
[1] In March 2022, the applicant was granted leave to bring a motion, on an urgent basis, for relief with respect to the school at which the parties’ only child would be registered for the 2022-23 academic year. I heard the applicant’s substantive motion on April 6, 2022.
[2] On April 11, 2022, the parties were informed of my decision – that the child would remain registered in the school in which the respondent had registered the child for the 2022-23 academic year. Written reasons for the decision were released on April 29, 2022: Thompson v. Sorrenti, 2022 ONSC 2481.
[3] The respondent seeks costs of $8,460.16 (inclusive of HST). She describes that amount as representing 75 per cent of the solicitor-client (or “full”) costs she incurred for both the urgency motion and the substantive motion.
[4] The applicant does not dispute the reasonableness of either the hourly rates or the docketed time upon which the respondent’s claim for costs is based. The applicant asks the court to consider that the costs requested by the respondent are disproportionate to the applicant’s solicitor-client costs of $7,723.55, for both motions. The applicant asks the court to order (a) that there be no costs awarded on the urgency motion, and (b) the applicant to pay the respondent’s costs of the substantive motion fixed in the amount of $3,000.
The Law
[5] Costs in family law matters are determined pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, starting with the presumption that the successful party is entitled to costs (see r. 24(1)). A myriad of principles applies to a determination of costs in a family law matter. Those principles are set out in r. 24 and derived from the case law.
[6] A fulsome decision of those principles is found in the decision of Chappel J., in Thompson v. Drummond, 2018 ONSC 4762, 13 R.F.L. (8th) 92, a decision upon which the respondent relies. I do not intend to list all of the principles. Instead, I focus on the principles upon which one or both of the parties rely in support of their respective positions on costs for the matter before me:
• The conduct of the parties, including whether the successful party has behaved unreasonably and whether the unsuccessful party’s conduct was in bad faith;
• The importance to the parties of the substantive issue(s) determined on the motion; and
• The costs that the unsuccessful party could reasonably expect to pay (including based on the costs incurred by the unsuccessful party).
Analysis
a) Entitlement to Costs
[7] Within a number of months after the child was born, the parties entered into a parenting agreement (“the Agreement”). Pursuant to the Agreement, the mother has sole decision-making authority for the child.
[8] The parties managed parenting of the child without significant discord until the issue arose of where the child will attend school for the 2022-23 year. How did the parties conduct themselves with respect to that issue?
[9] First, and as noted in the court’s decision on the substantive motion, it would have been preferable (if not ideal) for the respondent to have informed the applicant of her decision with respect to school registration in April 2021. In that month, the respondent informed the applicant of her impending household move, with the child, scheduled for the summer of 2022. The delay from April 2021 to early 2022 in making the school registration decision was not, however, unreasonable.
[10] I take judicial notice of the impact of the Covid pandemic on both the education system and decisions required from parents as to the manner in which children pursue their education (i.e., virtual versus in-person). I also consider that the respondent’s impending move requires the completion of a new build home. I take judicial notice of delays and uncertainties that arise with respect to new build homes – both of which increased during the Covid pandemic. The respondent could not have been certain in April 2021 that the new build home would be completed by September 2022.
[11] I find that the respondent’s conduct with respect to the timing of the school registration decision does not amount to unreasonable behaviour within the meaning of r. 24(4).
[12] Second, I accept that the applicant’s preference to have the child remain at the private school, which she has attended for several years, is both genuine and what he believes to be in the child’s best interests. I find, however, that the applicant’s initial response to the respondent’s school registration decision is the type of inappropriate behaviour that costs awards are intended to discourage and sanction.
[13] That initial response came in the form of an email – sent within a very short time after the respondent informed the applicant of the school registration decision. In his email, the applicant (a) threatened legal proceedings against the child’s current and fall 2022 school; (b) alleged fraud on the respondent’s part; (c) stated his intention to commence this proceeding; and (d) informed the respondent that he was prepared to incur at least $25,000 in legal costs in pursuing the substantive motion.
[14] I find that the applicant did not have the child’s best interests in mind when he threatened to commence a proceeding against both her current and fall 2022 schools. The applicant may not have appreciated the potential consequences of an allegation of fraud – if made in litigation and ultimately not proved. Regardless, I find that the applicant’s email constitutes the type of intemperate behaviour to be discouraged and sanctioned: see Thompson, at para. 23 and citing Heuss v. Surkos, 2004 ONCJ 141, at para. 20.
[15] Both parties acknowledge that the issue determined on the substantive motion was not complex, but was important.
[16] I turn to the final principle listed above – the costs that the applicant could reasonably have expected to pay. The applicant asks the court to consider his solicitor-client costs of approximately $7,725 in comparison to the respondent’s solicitor-client costs of $11,280.
[17] I find that the applicant’s solicitor-client costs are not the only measure by which to determine what the applicant could reasonably expect to pay in costs. The applicant set the bar for his reasonable expectations when he crafted the above-mentioned email. He told the respondent that he was prepared to spend $25,000 on this “first round” of the proceeding.
[18] With the applicant having made that statement, it was reasonable for the respondent to marshal fulsome evidence and deliver thorough materials in response to both motions. When considered in that light, it is not surprising that the solicitor-client costs incurred by the respondent represent 1.46 times those incurred by the applicant.
[19] I would, in any event find that the solicitor-client costs incurred by the respondent are not more than the costs that the applicant could reasonably have expected the respondent to incur.
[20] Last, I turn to the applicant’s request that the parties bear their own costs of the urgency motion. I note that, after being informed of the respondent’s school registration decision, there was no effort made by the applicant to attempt to resolve the matter through discussion.
[21] The choice of school is one of many decisions that fall within the scope of decision-making. In his application, the applicant does not restrict the relief he seeks to the discreet issue of choice of school. The applicant seeks a change to decision-making in its entirety. If the applicant has genuinely been concerned about the child’s best interests as they relate to decision-making generally, he has had months, if not years, to pursue the relief he now seeks. I find that the timing of the application is part and parcel of the applicant’s response to the respondent’s school registration decision.
[22] I also consider that the respondent acted reasonably by not conceding urgency after the threatening tone of the applicant’s email. In that environment it was reasonable for the respondent to dispute the urgency of the issues raised by the applicant.
[23] For those reasons, the respondent is awarded her costs of both motions.
b) Quantum of Costs
[24] In fixing the costs awarded to the respondent, I subtract from the solicitor-client costs, fees of $687.50 (plus HST). Those fees relate to preparation of costs submissions; they are not part of the costs of either the urgency motion or the substantive motion. Therefore, the starting point for fixing the costs to which the respondent is entitled is reduced from $11,230 to $10,505.
[25] Some of the work done by respondent’s counsel could have been done by an assistant – for example emails to the court to file documents, bookmarking materials filed with the court, and emails to opposing counsel to serve documents. That work, if done by an assistant, would not have resulted in fees for which an opposing party is responsible.
[26] In fixing the costs to which the respondent is entitled, I consider (a) the preliminary reduction to $10,505 as the starting point; (b) the elimination of clerical work that could have been delegated; and (c) the respondent’s reliance on 75 per cent of solicitor-client costs (see para. 3, above). I fix the respondent’s costs at $7,500, inclusive of fees, disbursements, and HST.
[27] The respondent did not distinguish between costs incurred with respect to the two motions. Nor does she make a specific request for an award of costs with respect to the pursuit of her claim for costs. In the absence of such a request, I make no award with respect to the costs associated with the respondent’s pursuit of costs of the motions: see Thompson, at para. 43.
Disposition
[28] The applicant shall, within 30 days of the date of this endorsement, pay the respondent her costs of the urgency motion heard on March 17, 2022, and of the substantive motion heard on April 6, 2022, in the total amount of $7,500 inclusive of fees, disbursements, and HST.
[29] The costs submissions received from counsel were carefully considered, thorough, and efficient in presentation. I wish to thank counsel for their work in that regard.
Madam Justice Sylvia Corthorn
Date: July 4, 2022
Court File No.: FC-22-291 Date: 2022/07/04
Ontario Superior Court of Justice Family Court
Re: Mark Thompson, Applicant And Vanessa Sorrenti, Respondent
Before: Madam Justice Sylvia Corthorn
Counsel: Alison Campbell, for the Applicant Megan Lepage, for the Respondent
Costs Endorsement
Corthorn J.
Released: July 4, 2022