Court File and Parties

COURT FILE NO.: FS-20-139-00 DATE: 2023-06-07

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

T.I. T. Ohman, for the Applicant Applicant

- and -

F.I. Self rep, for the Respondent Respondent

HEARD: Via Written Submissions Madam Justice T. Nieckarz

Reasons on Costs

[1] In my Reasons on Motion released on January 30, 2023, I invited submissions from the parties regarding the issue of costs. The facts of the case, issues to be determined, and my decision may be found at T.I. v. F.I., 2023 ONSC 749.

[2] The primary issue for determination on the motion was whether the Respondent (Mother) should be compelled to ensure that the child (7 years’ old) attends school and her activities when she is in her care. The child had a concerning record of being absent from school when in the care of her mother. The Mother argued that given concerns about the child’s emotional well-being, she should have discretion as a parent as to whether to send the child to school and activities. The Applicant (Father’s) motion was granted. I determined it is in the best interests of the child to have consistency with respect to attendance at school and her activities.

[3] The Father seeks costs of the proceeding on a substantial indemnity basis in the amount of $7,551.85, inclusive of fees, disbursements and HST. His arguments may be summarized as follows: a. He was the successful party and is presumptively entitled to costs. b. His Offer to Settle, served January 11, 2023 (the “Offer”), meets the requirements of Rule 18 of the Family Law Rules. The outcome of the motion was sufficiently “close” to the Offer on the most contentious issues that it attracts Rule 18 costs consequences. c. The Father attempted to resolve the issue, but the Mother persisted in her position that she should be able to determine whether not to send the child to school or her activities. The Father scheduled a trial management conference to try to resolve the matter, but the Mother’s intransigence on the issue caused the presiding judge to endorse the record to allow for the bringing of a motion. The Father should have substantial indemnity costs from the date of this conference on November 29, 2022.

[4] The Mother argues that this is not a case for costs, less alone substantial indemnity costs. She argues that the appropriate order is either no costs, or costs in the cause. She argues that: a. Success was divided. She was successful on a couple of issues such as the Father’s request to restrict the Mother’s social media postings, and her request for OCL involvement. In addition, the court did not grant the Father’s request for video calls to confirm any illnesses that may prevent the child from attending school, and the court placed some restrictions on extra-curricular activities. Final decision-making authority was granted to the Mother for activities in the Spring/Summer. b. Both parties were criticized by the court for having acted unreasonably at times, and for not having sent the child to school. The Mother argues that the Father, even if the more successful party, at times acted unreasonably such that he should be deprived of costs. The Mother cites Lavallee v. Moggy, 2019 ONCJ 425. c. The Offer is not a Rule 18 offer. It was not signed by him as required by Rule 18(4). It was not more favourable than the result as it contained relief that was not granted. d. The Bill of Costs provides no breakdown to assess reasonableness or proportionality. Almost half of the costs claimed were incurred by non-lawyers.

[5] I have considered the submissions of the parties. For the following reasons, the Mother shall pay costs to the Father in the amount of $2,500 inclusive of fees, disbursements and HST.

General Principles of Costs Applicable to this Case:

[6] An award of costs is a matter in the discretion of the Court by virtue of s. 131(1) of the Courts of Justice Act, which provides: Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

[7] Modern family cost rules are designed to foster four fundamental purposes: a. To partially indemnify successful litigants; b. To encourage settlement; c. To discourage and sanction inappropriate behaviour by litigants; and d. To ensure that cases are dealt with justly under r. 2(2) of the Family Law Rules, O. Reg. 114/99 Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[8] There are a number of specific rules from the Family Law Rules that are applicable to my exercise of discretion in determining the costs of this case.

[9] Rule 18 (14) of the Family Law Rules is as follows: 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.

[10] The burden of proving that an offer is as favourable or more favourable than the offer to settle is on the party claiming the benefit of it: Rule 18(5).

[11] Even if the court determines that subrule 18(14) does not apply, the court may take into account any written offer to settle, the date it was made, and its terms.

[12] An offer to settle shall be signed personally by the party making it and by their lawyer, if any.

[13] Rule 24(1) of the Family Law Rules provides that there is a presumption that a successful party is entitled to their costs.

[14] Rule 24(4) provides that a successful party may be deprived of all or part of their costs if they have behaved unreasonably.

[15] In deciding whether a party has behaved reasonably a court shall consider: a. The party’s behaviour in relation to the issues from the time they arose, including whether they 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) Harper v. Smith, 2021 ONSC 3420, at para. 5.

[16] Unreasonable behaviour in relation to the issues includes behaviour that is: a. disrespectful of other participants or the court; b. unduly complicates the litigation; c. increases the cost of litigation; or d. persists in advancing unreasonable positions. Harper, at para. 6, citing Beaver v. Hill, 2018 ONSC 3352, para 51, rev’d 2018 ONCA 840 (on other grounds).

[17] In addition to any matter deemed relevant by the court in considering the question of costs, Rule 24(12) requires the court to consider the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: a. each party’s behaviour; b. the time spent by each party; c. any written offers to settle, including offers that do not meet the requirements of rule 18; d. any legal fees, including the number of lawyers and their rates; e. any expert witness fees, including the number of experts and their rates; and f. any other expenses property paid or payable.

[18] Full recovery costs refers to the full amount claimed by a party, subject to any adjustments that the court considers appropriate based on the reasonableness and proportionality of the costs claimed. It means the total reasonable and proportional amount that a court determines the party should have spent in dealing with the case: Beaver v. Hill, 2018 ONSC 3352.

[19] In determining the amount of costs the court must also keep in mind that a costs award should represent a “fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant”: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A.); Kamboh v. Majeed, 2021 ONSC 1465. It is not simply a matter of adding up counsel’s dockets. A “fair and reasonable amount” is that which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9.

Analysis:

Success:

[20] I find that the Father was the successful party on the motion and that he is entitled to his costs. The primary issue in dispute was school and activity attendance. The Father was successful on this issue. This is what the majority of the affidavits and submissions were devoted to. The less significant issues were verification of illness by video chat and decision-making responsibility to all activities. I did not make the order sought by the Father with respect to verifying illnesses by video chat, and the parties achieved divided success with respect to decision-making authority pertaining to activities. The Mother’s verbal request for the appointment of the OCL was not contested.

[21] When considering the factors set out in Beaver and Harper, I do not find the Father’s conduct such that it was unreasonable enough to deprive him of his costs. The Father made reasonable efforts to resolve the matter. It is true that in my decision I was critical of parenting choices of both parties, but it was not the Father’s actions in keeping the child home for a day or the family violence issues raised by the Mother that were the impetus for this motion. This motion was necessitated by the Mother’s refusal to send the child to school and her activities consistently. Having said this, there was also nothing about the Mother’s conduct that warrants substantial or full recovery costs.

Rule 18:

[22] When comparing an offer to the result for the purpose of Rule 18, Pazaratz J., in Chomos v. Hamilton, 2016 ONSC 6232, 82 R.F.L. (7th) 395, at para. 19, noted that: a. To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer); b. The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms; and c. What is required is a general assessment of the overall comparability of the offer as contrasted with the order.

[23] Even though the Father was the successful party on the primary issue, I find that he is not entitled to either substantial indemnity or full recovery costs as claimed. The result at the motion was sufficiently different from the offer to settle so as not to attract the Rule 18 consequences.

Quantum:

[24] The question becomes what is an amount of costs that is proportional to the issues and result that is fair and reasonable in the circumstances of this case. My job in assessing costs is not to do a line-by-line analysis of the fees or individual disbursements incurred by the Mother’s lawyer. I certainly do not have sufficient evidence or submissions to do so.

[25] Considering the Rule 24(12) factors in general: a. The issues in dispute were of considerable importance to the parties, particularly the attendance of the child at school and activities and each parent’s strongly held beliefs about his issue. b. The Mother’s counsel’s rate is reasonable given her experience. It is not my role to second guess the amount of time spent by counsel, but I note that the Bill of Costs does not allow me to assess the reasonableness of the fees claimed. There is nothing more than total amounts for each lawyer and staff person who have worked on the case. c. Of the total fees claimed on a substantial basis of $6,575.85, approximately $3,000 are claimed on behalf of law clerks and students without any ability for me to assess the reasonableness of these claims through a breakdown of those fees. I am therefore left to conclude that these fees are on account of administrative tasks that should be subsumed within the lawyer’s fees. d. I also note that there is time claimed by three lawyers. I do not know why. e. This was a relatively simple motion. It was scheduled for motions court as it was 1 hour in duration. The evidence was not complicated, nor was the law. f. There are some disbursements that are difficult for me to ascertain whether they are recoverable or not. For example, $107.20 in laser printing fees. This strikes me as an overhead matter that may be recoverable as between a lawyer and client pursuant to the terms of their retainer, but not from an opposing party.

Order:

[29] I find that a fair and reasonable amount for the Mother to pay the Father on account of fees, disbursements, and HST incurred in relation to this motion is $2,500. The Mother shall pay the Father costs in the amount of $2,500 within 30 days.

The Honourable Madam Justice T.J. Nieckarz Released: June 7, 2023