COURT FILE NO.: FS-21-23904
DATE: 20220127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
L.L.M.
Applicant
– and –
T.Z.
Respondent
Justin Clark & Ida Mirzadeh, for the Applicant
Jacques Gauthier, for the Respondent
HEARD: In writing
M.D. Faieta j.
COSTS ENDORSEMENT
[1] The parties brought motions for an interim parenting order in respect of their ten-year-old daughter. The Applicant father sought an equal shared parenting arrangement whereas the Respondent mother sought primary residence of their daughter and that the Applicant have supervised parenting time with their daughter three days each week. I found that the Applicant’s parenting time with their daughter should continue a supervised basis on the terms proposed by the Respondent. The Respondent mother claims costs of $30,176,65, inclusive of HST, on a substantial indemnity basis
[2] Although filed a few days before the release of the above decision, the Applicant father filed a Form 14B motion (which did not come to my attention until after the release of the above decision) for an order permitting fresh evidence. That motion was also dismissed. The Respondent mother claims costs of $6,740.45, inclusive of HST, on a substantial indemnity basis in respect of the Form 14B motion.
[3] In respect of both motions the Applicant submits that no costs should be awarded or alternatively that costs of this motion should be reserved to the trial judge who will have the benefit of a fuller evidentiary record.
ANALYSIS
[4] In a family law proceeding, the award of costs is in the discretion of the court and it is informed by the following principles:
An award of costs should foster the following purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants; (4) to ensure that cases are dealt with justly as required by Rules 2(2) and 2(4) of the Family Law Rules, O. Reg. 114/99: Mattina v. Mattina, 2018 ONCA 867, para. 10;
A successful party is presumed to be entitled to their costs of the proceeding: Rule 24(1);
Proportionality and reasonableness are the “touchstone considerations” to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840, para. 12;
In setting the amount of costs, Rule 24(12) requires a court to 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.
- In deciding whether a party has behaved reasonably a court shall examine:
a. the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
b. the reasonableness of any offer the party made; and,
c. any offer the party withdrew or failed to accept: Rule 24(5);
Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation: Beaver v. Hill, 2018 ONSC 3352, para. 51, rev’d 2018 ONCA 840 (on other grounds);
A successful party who has behaved unreasonably during a case may be denied their costs or ordered to pay an unsuccessful party’s costs: Rule 24(4)
Other relevant considerations include:
a. A party’s ability to pay costs is a relevant consideration in assessing the amount of costs payable only for the purpose of justifying a reduction, not an increase, in the amount of costs awarded: Beaver, para. 18;
b. The absence of an offer to settle cannot be used against a party in assessing costs unless it was realistic to expect an offer to settle to be made. Further, if an offer to settle that is not compliant with Rule 18 is made, it may be considered in assessing costs if it contains a “true element of compromise”: Beaver, para. 16;
c. An award of costs may be adjusted to reflect the parties’ divided success: Rule 24(6); Beaver, para. 21.
A successful party is presumptively entitled to its costs on a full recovery basis when that party obtains a result that is at least as favourable as its offer to settle: Rule 18(14); C.A.M v. D.M. 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 (C.A.), para. 43.
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately: Rule 24(8). “The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.) (2007), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (S.C.J.), at para. 17, aff'd 2010 ONCA 196, 262 O.A.C. 225, is that the impugned behaviour must be shown to be carried out with "intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court." In short, the essential components are intention to inflict harm or deceive.”: See Scalia v. Scalia, [2015] O.J. No. 3491 (C.A.), para. 68. One example of bad faith conduct is when a parent engages in a campaign to alienate a children from the other parent in order to inflict emotional harm on that parent: S. (C.), para. 21.
Unless Rule 18(14) or Rule 24(8) is applicable, a successful party is not entitled to its costs on a full recovery or “close to full recovery” basis: Beaver, paras. 13, 17.
Ultimately, a costs award should reflect an amount that is fair and reasonable for the unsuccessful party to pay: Selznick v. Selznick, 2013 ONCA 35, para. 3.
Success on the Motion
[5] The Applicant was the successful party on the motion and the Form 14B motion.
Offers to Settle
[6] Each party delivered an Offer to Settle in July 2021. The Applicant father delivered a second offer in August 2021. The Applicant father’s offers proposed shared, unsupervised parenting. The first offer remained open for acceptance for four days and the second offer remained open until the motion. The Respondent mother’s offer proposed supervised parenting by the Applicant father until August 31, 2021. It did not address the parenting time regime after August 31.
[7] None of the offers qualify as a Rule 18 offer to settle as neither party’s offers were at least as favourable as the outcome of the motion.
[8] No offers to settle were made in respect of the Form 14B motion however the Applicant disclosed “without prejudice” letters made by each party that offered to settle costs of the Form 14B motion. The Applicant relies on these without prejudice offers, however I agree with the Respondent that it is inappropriate to consider without prejudice communication whose subject-matter is the very issue to be decided. This case is distinguishable from a case where without prejudice offers on parenting proposals were later admitted in determining costs of the motion: Howes v. Howes, 2018 ONSC 6297.
Reasonableness of the Parties’ Behaviour
[9] The Applicant father submits that he made concerted efforts to encourage the Respondent mother to jointly retain a parenting assessor. The Applicant states that both parties agreed to retain the services of a parenting assessor at the time of a settlement conference on October 27, 2021 (after the hearing of the motion). Neither party sought this relief on the motions and the fact that the Respondent mother did not allegedly agree to a parenting coordinator until the eve of a settlement conference is not relevant to the award of costs on either motion.
[10] The Applicant father further submits that the Respondent mother refused to consider alternative approaches to parenting time. Given the result, this was not unreasonable. I note that neither of the Applicant father’s offers veered from shared and unsupervised parenting. If the reference point is this court’s decision on the motion, then it was the Applicant father whose settlement offers were unreasonable.
[11] In respect of the Form 14B motion, the Respondent submits that the motion materials were inaccurate and misleading. I agree, as I found that although the Applicant claimed in his affidavit that correspondence from the Toronto Police Service stated that no child pornography had been found on his cell phone there was nothing in any email or other document from the TPS that was appended to his affidavit which supported that claim.
Reasonableness of the Legal Fees and Disbursements Claimed
[12] The Applicant father did not take issue with the quantum of costs sought by the Respondent mother. The costs incurred by the Respondent mother were higher than is normally seen on a motion of this type given the numerous affidavits filed by Applicant.
[13] In respect of the Form 14B motion the Applicant father submits that costs, if awarded, should not exceed $750.00. However, the Applicant’s Bill of Costs in respect of the Form 14B motion claims that he incurred fees of $3,166.83 on a full recovery basis.
[14] In my view, the hourly rates and time spent by counsel for the Respondent on both the motion and the Form 14B motion were reasonable and necessary to respond to the lengthy materials filed by the Applicant.
Should the Award of Costs be Deferred or Denied?
[15] The Applicant father submits that costs should be reserved to the trial judge who will have the benefit of a fuller evidentiary record to determine credibility issues: Aghaei v.Ghods, 2012 ONSC 3594. The reservation of costs to a later stage in the proceeding under Rule 24(10) is the exception rather than the rule: Cole v. Barrett, 2020 ONSC 3656, para. 26. Most family law proceedings do not proceed to trial. As a result, the Applicant’s approach will likely result in costs never being determined in respect of the motion. Further, the Applicant filed eight affidavits and put his best foot forward on this motion. In my view, it would be an injustice not to determine costs forthwith.
[16] The Applicant father further submits that no costs should be awarded as he was acting in the best interest of the child in seeking shared, unsupervised parenting time. Almost all parents who come to court over child-related decisions believe their proposal is in the child’s best interests. Good intentions are insufficient reason to depart from the presumption that a successful party is entitled to their costs: A.P. v. L.K., 2021 ONSC 1054, para. 14.
CONCLUSIONS
[17] The Respondent is entitled to his costs of the motion and the Form 14B motion. There is no basis under the Rules for full indemnity or close to full indemnity costs in this case.
[18] Having regard to the purposes of a costs award in a family law proceeding, I find that, in respect of the motions, it is fair and reasonable for the Applicant to pay costs to the Respondent in the amount of: (1) $20,000.00, inclusive of taxes and disbursements, in respect of the motion; and (2) $3,000.00, inclusive of taxes and disbursements in respect of the Form 14B motion.
Mr. Justice M.D. Faieta
Released: January 27, 2022
COURT FILE NO.: FS-21-23904
DATE: 20220127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
L.L.M.
Applicant
– and –
T.Z.
Respondent
COSTS ENDORSEMENT
Mr. Justice M. D. Faieta
Released: January 27, 2022