Court File and Parties

COURT FILE NO.: FC-17-636- 2 DATE: 2023/02/17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tamara Egan, Applicant AND: Michael McAlpine, Respondent

BEFORE: Somji J.

COUNSEL: Eric Letts, for the Applicant Rebecca Rosenstock, for the Respondent

HEARD: In Writing

COSTS ENDORSEMENT

[1] The father brought an urgent in the fall of 2022 to reinstate his two children in public school. He was the successful party on the motion and seeks costs on a substantial indemnity basis in the amount of $3,728.32.

[2] The issues to be decided are the father’s entitlement to and quantum of costs.

Issue 1: Is the father entitled to costs?

[3] Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[4] Rule 24 sets out the legal framework for cost orders in family cases: Mattina v Mattina, 2018 ONCA 867 at para 9.

[5] The starting point is that the successful party is presumptively entitled to costs: r. 24(1) of the Family Law Rules, O. Reg. 114/99 as am. However, in assessing entitlement, judges must consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct on the part of a successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8).

[6] Counsel for the mother suggests that the father’s unwillingness to provide full financial disclosure and update his child support payments makes a costs award unfair and constitutes a continuation of the father’s financial abuse of the mother. I disagree.

[7] The motion before me did not concern child support. If child support is an issue, then the mother is well entitled to bring a motion to obtain an order compelling enforcement of arrears and ongoing child support through the Family Responsibility Office. Furthermore, as noted in my decision at paragraph 41, the father is paying $400/month of child support to the mother for his two children. This was also noted by Justice Doyle in her earlier motion decision. While I appreciate that the mother has had financial struggles along the way, some of which involve fathers of her other children, those financial challenges do not disentitle the respondent father to bring a motion regarding decisions made by the mother governing the wellbeing of his children and certainly does not preclude him from a costs awards if he is successful on such a motion.

[8] In this case, the father is the successful party and presumptively entitled to costs. I find there is nothing in the father’s conduct that would disentitle him to a costs award.

Issue 2: What is the appropriate amount of costs that should be paid?

[9] In determining costs, the parties and court must consider that modern costs rules are designed to foster four fundamental purposes: 1) to partially indemnify successful litigants; 2) to encourage settlement; 3) to discourage and sanction inappropriate behaviour by litigants; and 4) to ensure, as per r. 2(2), that cases are dealt with justly: Mattina at para 10.

[10] Rule 24(12) requires a judge to consider the following in determining quantum:

(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 r. 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.

Conduct of the parties

[11] The father seeks substantial indemnity costs on the basis of the mother’s unreasonable conduct.

[12] Where a party behaves unreasonably, the court may grant an elevated costs award: See Rappazzo v Venturelli, 2018 ONSC 4760 at para 31; Devon Royce Thompson v Kathleen Ann Drummond, 2018 ONSC 4762 at paras 37 to 39; Arthur v Arthur, 2019 ONSC 938 at paras 35 and 46.

[13] Rule 24(5) states that in determining whether a party has behaved reasonably or unreasonably, the 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. O. Reg. 114/99, r. 24 (5).

[14] I find the mother’s conduct was unreasonable and warrants an elevated costs award for the following reasons: I find the mother one, attempted to relitigate the issue of relocation when this issue had already been decided by Justice Doyle on March 2022; two, enrolled the children at school in Welland, Ontario, in anticipation of a move even after her motion to relocate was dismissed and without informing the father; three, enrolled the children in an American online education program without notifying the father that the children had been pulled from in-person school in Ottawa where they had always attended; four, failed to respond to the father’s inquires about the children’s enrollment in school throughout August 2022 resulting in an urgent motion that would have been better addressed before the start of school in September so as to minimize disruption in the children’s schooling; five, provided various excuses for why she could not take the children to their local school such as being unable to drive when in fact she was driving another child to attend daycare in the same building as the school; and finally, informed the father that the children were no longer allowed to attend their local school because of her change in address when the school reported to the father verbally and later in writing (see email from school dated November 9, 2022) that they provided no such information to the mother. In this regard, the mother misled both the father and the court.

Complexity and reasonableness of costs request

[15] The motion was not complex but did require compiling evidence from different sources, including school professionals. Counsel for the father set out in detail the work performed in preparing for the motion between September 14 and November 28, 2022, including preparation of the costs submissions. Billings for the urgency portion of the motion were already addressed and properly excluded from this costs request.

[16] Counsel for the father spent 13.4 hours preparing for and attending for the motion which I find is very reasonable. 5 ½ hours was for attendance at the motion hearings. Part of the reason for the very low billings is because counsel for the father relied on affidavits and materials previously prepared for the urgency portion of the motion and the substantive motion to change.

[17] Counsel’s hourly rate is $275/hour which is commensurate with her 2015 year of call. The total costs for the motion was $4,142.58. and included disbursements of $90.40. Partial indemnity costs would be $2,485.55. The father seeks substantial indemnity costs in the amount of $3,728.32.

Ability to pay

[18] In assessing costs, I must consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and children: Fyfe v Jouppien, 2012 ONSC 97, 10 R.F.L. (7th) 371 at para 11; M(A.C.) v M (D.) (2003), 67 O.R. (3d) 181 (C.A.) at para 45.

[19] Counsel for the mother argues that a costs award would significantly impact the mother financially given she is now raising six children. Counsel for the mother has not provided any additional details about her present financial situation.

[20] However, based on the materials and submissions on the motion, I found in my decision that the mother receives $30,000/year in Child Tax Benefits for five children. In addition, at the time of the motion, she was expecting a sixth child with a fourth father. She is presently on maternity leave and it is unclear if she receives any additional maternity benefits. Other than the $400/month paid by the respondent father, it is also unclear how much she receives in child support from the other fathers.

[21] The mother is without a stable residence because she hopes to move to Welland, Ontario, and is in litigation with all the fathers with respect to her request to relocate there. At paragraph 39 of my decision, I note that despite the mother’s limited financial means, she appears to be making questionable financial choices such as failing to exit a lease requiring her to pay $2,500/month for a vacant apartment in Welland, Ontario, money that could be spent for the children’s care. Finally, the mother is currently in litigation with all three fathers. I am mindful of these additional legal costs in assessing her ability to pay.

Conclusion

[22] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26.

[23] Having considered that the father is the successful party on the motion, the mother’s unreasonable conduct, the complexity of the issues, the billings and reasonableness of the costs request, and the mother’s ability to pay, I find that an elevated costs award to the father in the fixed amount of $3,000 is fair and reasonable in this case.

Order

[24] There will be an order that the mother shall pay the father costs in the fixed amount of $3000 within 30 days.

Somji J. Date: February 17, 2023 Released: February 17, 2023