COURT FILE NO.: FC120/22
DATE: 20220930
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Jonathon Paul Downs, Applicant
AND:
Bryar Jillian Downs, Respondent
BEFORE: MITROW J.
COUNSEL: Paula Downs for the Applicant
Robert A. Haas for the Respondent
HEARD: Written submissions filed
Costs ENDORSEMENT
[1] Pursuant to my order dated June 9, 2022, I have received, and reviewed, the written costs submissions of both parties.
[2] The main issue dealt with in the reasons[^1] was the interim parenting order for the parties’ child, who is now age 10.
[3] Although the order also dealt with interim interim child support payable by the applicant father, the costs submissions before me were limited to the interim parenting order - all other costs on the motions were reserved to the judge who deals with the balance of the relief sought on the motions.
[4] The respondent mother was the successful party. She was awarded interim sole decision-making responsibility for the child and interim primary care of the child.
[5] In his motion, the applicant claimed sole decision-making responsibility and also primary care of the child. When the motions were heard, the applicant proposed interim joint decision-making responsibility and a week-about parenting time. The applicant was unsuccessful on the parenting claims in his motion and his order sought at the time of the hearing.
[6] As the successful party, the respondent presumptively is entitled to her costs: r. 24 (1).
[7] The respondent seeks $12,000 inclusive of HST.
[8] The applicant submits that considering the factors outlined in r. 24 that a costs award of $5000 is very reasonable for the parenting issue.
THE FACTORS – R. 24 (12)
[9] I consider reasonableness and proportionality in relation to the factors listed in r. 24 (12)(a).
[10] Regarding each party’s behaviour, although the respondent levied allegations of verbal and emotional abuse against the applicant, he denied those allegations. It will be up to the trial judge, given the conflicting evidence, to make findings of fact regarding those allegations, and this will include the respondent’s allegation that the applicant currently has an issue with alcohol dependency. Given the conflicting evidence, any findings of unreasonable behaviour based on these allegations must await trial.
[11] Similarly, I decline to make a finding of bad faith conduct as alleged by the respondent. That too would require findings of fact to be made at trial. Having said that it appears that the allegations do not describe conduct that rises to the level of bad faith: see the often-cited decision of Perkins J. as to what is required to show bad faith, in S. (C) v. S. (M.), 2007 CanLII 20279 (ON SC), 2007 CarswellOnt 3485 (Ont. S.C.J.) paras. 16, 17.
[12] I do find however that the applicant’s preoccupation in his affidavit material with respondent’s relationship with others rises to the level of unreasonable behaviour.[^2]
[13] Findings were made in the reasons[^3] that the respondent was subjected to pressure and intimidation by the applicant and his father to sign a separation agreement that was presented to her without any financial disclosure and with no negotiations having taken place. I find that conduct to be unreasonable.
[14] Regarding the respondent, her reply material included an affidavit from her mother that was improper reply.[^4] I would characterize this as unreasonable behaviour as it added needlessly to the voluminous material and prompted the applicant to file more unnecessary material.
[15] The applicant and respondent each filed a bill of costs. I find the hourly rates for all lawyers in both bills of costs to be reasonable. Neither party provided their respective lawyers’ time dockets.
[16] The applicant submits that the respondent’s bill of costs encompasses all work done on the motions and that it is not limited to the interim parenting issues as required.
[17] There is nothing in the respondent’s bill of costs to suggest that it is limited to the parenting issues. The descriptions in the respondent’s bill of costs speak in generalities, for example, “drafting and preparing documents” and “revise and finalize notice of motion; Affidavits”. Given the lack of time dockets, it is not possible to conclude that the respondent’s bill of costs relates only to parenting issues.
[18] Having said that, the applicant’s bill of costs is stated to be in relation to interim parenting issues. The total “substantial indemnity” fees claimed are $12,522.50, which is more than the respondent’s “substantial indemnity” fees of $10,404, the latter apparently including matters unrelated to parenting.
[19] I do consider however that the substantial portion of the evidentiary record on the motions related to parenting issues.
[20] In considering the offers, the picture becomes clear that the respondent was far more attuned to what was in the child’s best interests. The respondent’s two written rule 18 offers dealt with various other issues unrelated to parenting, and therefore do not engage the costs consequences of r. 18(14).
[21] In her first offer (March 25, 2022) the respondent proposed that she have interim primary of the child, pending completion of the Office of the Children’s Lawyer (“OCL”) investigation. In her next offer several days later, the parenting proposal included shared parenting of the child and a week-about parenting plan pending completion of the OCL investigation.
[22] It is apparent that some aspects of the respondent’s offers regarding parenting were more generous to the applicant father than the order.
[23] I consider also that the parenting plan contained the draft separation agreement prepared by the applicant father bore no resemblance either to the status quo or the order.
CONCLUSION
[24] Although both parties included submissions as to “partial indemnity” and “substantial indemnity” it is noted that under the Family Law Rules, O. Reg. 114/99, that judges are not constrained to the scales of costs found in the Rules of Civil Procedure, R.R.O 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules: Beaver v. Hill, 2018 ONCA 340 (Ont. C.A.) at para. 9.
[25] In Sims-Howarth v. Bilcliffe, 2000 CarswellOnt 299 (Ont. S.C.J.), Aston J., at para. 4, noted that the traditional scales of costs in the Rules of Civil Procedure are no longer applicable, and that under the Family Law Rules the court must fix costs at some figure between a nominal amount and full recovery. The conclusion of Aston J. that “the Family Law Rules demand flexibility in examining the list of factors in r. 24(11) [now r. 24(12)] without any assumptions about categories of costs” was approved in M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), 2003 CarswellOnt 3606 (Ont. C.A.), at para. 42.
[26] The issue of parenting was of vital importance to both parties.
[27] Considering the factors as discussed above, in the context of reasonableness and proportionality, I fix the costs to which the respondent is entitled at $8,000 all-inclusive.
ORDER
[28] I make the following order:
- The applicant shall pay to the respondent her costs of the motions in relation to interim parenting issues fixed in the amount of $8,000 inclusive of disbursements and HST, payable within 30 days.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: September 30, 2022
[^1]: Downs v. Downs, 2022 ONSC 3382 (Ont S.C.J) [^2]: See reasons, Downs v. Downs, supra, para 106 [^3]: Downs v. Downs, supra, paras 40-44 [^4]: Downs v. Downs, supra, paras 102, 103