Court File and Parties
Court File No.: FS-17-130-002 Date: 2022-07-08 Superior Court of Justice – Ontario
Re: J.C., Applicant And: R.P., Respondent
Before: Justice D.A. Broad
Counsel: Cassandra Bruni, for the Applicant Maybelline Massey, for the Respondent
Costs Endorsement
[1] The parties have evidently been unable to resolve the issue of costs in relation to the applicant’s motion seeking reunification therapy and the respondent’s motion seeking child support. They have therefore each delivered written submissions on costs.
Position of the Respondent
[2] The respondent seeks costs on a full indemnity basis in the amount of $6,709.26 comprised of fees in the sum of $6,500, disbursements of $120 and HST of $860. He says that he was entirely successful in resisting the applicant’s motion for reunification therapy and specified parenting time and was granted his requested relief on his cross-motion relating to parenting time, child support and disclosure and is therefore entitled to costs pursuant to rule 24(1) of the Family Law Rules.
[3] The respondent asserts that the applicant acted unreasonably in the scheduling of the motions and failed to abide by agreed and prescribed timelines for the delivery of materials, which resulted in the respondent being left with less than two days to draft his reply to the applicant’s materials.
[4] The respondent points to his Offers to Settle made on March 8 and April 21, 2022. He says that in successfully defending the applicant’s motion and being granted his requested relief in his motion with the exception of the income sought to be imputed to the applicant for the purposes of child support, he was able to obtain an order that was as favourable as his Offers to Settle.
[5] The respondent notes that the request for a finding of parental alienation is known to be a complex issue in family law, necessitating the provision of a Facta with authorities interpreting the current legal landscape relating to parental alienation and reunification therapy. He also notes that a finding of parental alienation against him would have been highly prejudicial with respect to his suitability as a parent to the child. It was extremely important to the respondent that the applicant’s assertions of parental alienation be defended. He says that the time spent as disclosed on his Bill of Costs is proportionate to what would constitute the expected time to sufficiently address a long motion dealing with complex issues. Multiple affidavits had to be prepared due to the various adjournments of the motion and procedural issues caused by the applicant.
Position of the applicant
[6] The applicant submits that each party should bear their own costs. In the alternative, she seeks an order that the issue of costs be adjourned to trial, as while no finding of alienation could be made out on contradictory affidavit evidence, the finding may be made out at trial. In the further alternative she requests that the costs award to the respondent be fixed in $2,500.
[7] The applicant points out that the respondent did not serve his most recent Offer to Settle until 2:33 pm on the day before the motion was heard. She notes that she is of limited financial means, the Court having found that her annual income is $36,340. She is responsible for supporting her non-subject child who lives with her.
[8] Although she was ultimately unsuccessful in her bid for reunification therapy, the applicant asserts that her motion was not an unreasonable step and was not a step that she took lightly, She brought it as a last resort. She initially made her motion returnable on a holding date, in accordance with the court’s Practice Direction. The matter was adjourned as the OCL clinician’s report had not been completed and was rescheduled to March, 2022 but had to be adjourned again upon learning that the original proposed therapist was no longer available. The delays were unavoidable and not the fault of the applicant.
[9] The applicant says that both parties made Offers to Settle. She made offers on April 11 and April 21, 2022, the second of which was severable and addressed both motions. In her most recent offer she proposed to pay $315 per month in child support based upon an imputed income of $36,000, which was very close to the support she was ordered to pay in the sum of $318.60.
Guiding Principles
[10] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid."
[11] Pursuant to rule 24(1) of the Family Law Rules, the successful party is presumed to be entitled to recover costs. Rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.) at para 42).
[12] Rule 24(6) of the Family Law Rules provides that if success on a step in a case is divided, the court may apportion costs as appropriate.
[13] Rule 18(14) of the Family Law Rules provides that a party who makes an Offer to Settle at least one day prior to a motion or seven days prior to a trial, which did not expire, was not withdrawn and was not accepted, and obtains an order that is as favourable as or more favourable than the offer is entitled to costs to the date of service of the offer and full recovery of costs from that date, unless the court orders otherwise.
[14] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 CanLII 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of rule 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.
[15] In M. (C.A.) v. M (D.) the Court of Appeal confirmed, at paras. 40-42, that:
(a) although the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act, they have not completely removed the trial judge's discretion;
(b) although the general provision, rule 24(1), enacts a "presumption" that the successful party is entitled to costs of the case it does not require that the successful party is always entitled to costs;
(c) a successful party may not obtain a costs award in his or her favour even in circumstances not falling within rule 24(4);
(d) there may be circumstances aside from the unreasonableness of the successful party's conduct that rebut the presumption; and
(e) the financial situation of the parties can be taken into account in setting the amount of the costs award either under rule 24 or rule 18 pursuant to the direction in sub rule 24(11) that the court take into account "any other relevant matter".
[16] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).
[17] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).
[18] As recently emphasized by the Court of Appeal in Beaver v Hill, 2018 ONCA 840 at paras. 12-13, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs in family proceedings and a "close to full recovery" approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, e.g. bad faith under r. 24(8), or besting an offer to settle under r. 18(14).
Discussion
[19] It is not disputed that the respondent was the successful party in respect of both motions and that he is presumptively entitled to costs in relation to them pursuant to rule 24(1) of the Family Law Rules. Based upon the clear direction of the Court of Appeal in Beaver v Hill I am not satisfied that an award permitting full recovery of costs as claimed by the respondent is warranted in the circumstances. Whatever criticism the respondent levelled against the applicant in respect of scheduling and service issues did not rise to the level of bad faith. Moreover, the respondent’s Offer to Settle dated April 21, 2022 was not made at least one day before the motion date as required by sub- rule 18(14)1, of the Family Law Rules and the offer was not “bested” in respect of the quantum of child support determined by the court.
[20] I am not satisfied that the costs determination should be left to trial. Pursuant to sub-rule 24(10) the usual practice is for the court to determine costs after dealing with a step in the case, I see no reason to deviate from that practice in this circumstance.
[21] The court is left to determine the appropriate amount of costs for which the applicant should be responsible in the particular circumstances of this case. This determination is informed by the following principles:
the touchstone considerations of proportionality and reasonableness referred to in Beaver v Hill;
that in cases involving decision-making and parenting time, a more tempered approach to costs may be appropriate on the rationale that parties should not be discouraged from advancing bona fide claims for such relief out of fear of possible deleterious financial circumstances (see Wallegham v. Spigelski, 2015 ONSC 8066, per Chappel, J. at para. 23); and
the primary objective of the Family Law Rules stated at rule 2(2) that the court deal with cases justly
[22] It is noted that Chappel, J.’ s observation in Wallegham was approved of by Diamond, J. in Koplowitz v Savage, 2017 ONSC 322 at para. 8 and more recently by Calum MacLeod, R.S.J. in A. (J.E.) v. (S. (A.), 2021 ONSC 6914 at para. 21.
[23] This is an extremely unfortunate and challenging case. On the evidence the decision of the parties’ 14-year-old child to refuse any meaningful contact with applicant, although strongly held, is perplexing. Although she was unsuccessful, it is difficult to fault the applicant for making the decision to move for reunification therapy in an effort to address the situation, given the policy of the law to facilitate the maximum contact of a child with both parents which is commensurate with the child’s best interests. It is also noted that both parties are of limited means, with the applicant having the lower income.
Disposition
[24] Applying a tempered approach to the quantification of the costs, I find that it would be just and reasonable to award the respondent costs of the motions fixed in the sum of $2,500 in respect of fees, plus HST thereon of $325 and disbursements of $120 for a total of $2,945. This amount is to be paid by the applicant within 60 days hereof.
D.A. Broad, J.
Date: July 8, 2022