Court File and Parties

COURT FILE NO.: FC-22-334 DATE: 2023/04/13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regan Daniel Cuthbert, Applicant AND: Kaitlyn Elizabeth Johnson, Respondent

BEFORE: Somji J.

COUNSEL: Gonen Snir for the Applicant Peter Sammon for the Respondent

HEARD: In Writing

Costs Endorsement

[1] The mother was the successful party on an urgent motion brought in January 2023 to reinstate parenting time with her 17-month-old child. She seeks substantial indemnity costs.

[2] Leave was granted for the father’s counsel to file late costs submissions. The father’s counsel argues that the costs award sought is not justified because the father’s conduct was reasonable and counsel’s billings are excessive.

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

Issue 1: Is the mother entitled to costs?

[4] 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.

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

[6] 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 (“FLR”). 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).

[7] The father’s counsel argues that the mother was only partially successful because she did not obtain the precise parenting time she requested in her notice of motion and parenting time had never been denied by the father. I disagree. As stated in my decision, the father’s position on the mother was for the mother to have parenting time on alternative weekends with no proposed timetable for increasing that parenting time. My decision awarded the mother shared parenting time: Cuthbert v Johnson, 2023 ONSC 844 at paras 2, 39 and 42. The fact that I ordered a one-month transition to an equal parenting schedule does not undermine her success on this issue.

[8] The mother was successful on both the issue of urgency and the substantive motion and is presumptively entitled to costs. There is nothing in the mother’s conduct that would disentitle her 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 and offers to settle

[11] 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.

[12] 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).

[13] Rules 18(14) and (16) FLR address the cost consequences of offers to settle:

18 (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[14] There was no offer to settle in this case that triggered the application of r. 18(14).

[15] Nonetheless, I must consider any offers made in exercising my discretion on costs: r. 18(16) FLR. In family litigation, offers to settle play an integral role in saving time and expenses by promoting settlements, focusing parties, and narrowing issues in dispute: Paldo v MacDonald 2018 ONCJ 529 at para 23.

[16] The mother did not make a formal offer but sent several emails requesting to reinstate some temporary without prejudice parenting time with the child given she had not seen the child for a two month period including over Christmas. These efforts were without success.

[17] The father made a formal offer on January 4, 2023, but I find it should be given minimal weight in determining a costs award for several reasons. First, the offer to settle was inappropriately sent to the mother rather than to her counsel. Second, it is clear that the child was being unfairly withheld from any visitation with her mother until and unless the mother acquiesced to the terms of temporary written agreement. As discussed in my decision at paragraph 11, one need not have a written agreement or Minutes of Settlement before arrangements can be made for a parent to see their child. That the mother was not willing to agree to every alternative weekend or all the terms proposed in the father’s written offer was not reason to prevent her from seeing her 17-month-old child for over two months. As noted in my decision at paragraph 24, notwithstanding the father had travel plans to visit his family over Christmas, his lack of cooperation to accommodate a parenting visit between the mother and child for over two months was concerning. I find it constitutes unreasonable conduct that warrants an elevated costs award.

Complexity of issues, time spent, and rates

[18] The issues on the parenting motion were not complex. Counsel spent a total of 16 hours on both the urgency and parenting motions, as well as preparing cost submissions. Time was spent preparing pleadings for both motions, meeting with the client, corresponding with counsel, attending the hearing, and preparing the draft Order, and costs submissions. In contrast, the father’s counsel reports that he spent only 6.5 hours on the parenting motion. I note, however, that the father’s counsel’s bill of costs do not refer to the urgency motion. Costs generally follow the cause. I find the total time spent by the mother’s counsel on both motions to be reasonable.

[19] I also find that relitigating the issue of urgency which had been decided by Justice London-Weinstein at the urgency motion unnecessarily increased the time and work for the mother’s counsel. In addition, I note that the father’s counsel attempted to relitigate the issue a third time in his costs submissions. As already noted, one of the aims of costs awards is to discourage and sanction inappropriate conduct.

[20] The mother’s counsel is a 1987 call and his hourly rate is $280/hour which is more than commensurate for his 37 years of experience. The total costs for the motion was $4,480. Substantial indemnity costs would be $3,584 and partial indemnity costs would be $2,688.

[21] The father’s counsel has not identified any challenges with 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 mother is the successful party, the father’s unreasonable conduct, the complexity of the issues, the billings, and the reasonableness of the costs request, I find that an elevated costs award in the fixed amount of $3500 is fair and reasonable in this case.

Order

[24] The father will pay the mother costs in the amount of $3500 within 30 days of this Order.

Somji J. Date: April 13, 2023