COURT FILE NO.: FS-17-88715-00 DATE: 2023 07 31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Song Wang, Applicant R. Narang, for the Applicant
- and -
Bofeng Tang, Respondent R. Tao, for the Respondent
COSTS ENDORSEMENT
MCGEE J.
Overview
[1] In this motion heard June 9, 2023, with reasons released on June 16, 2023, I made a comprehensive parenting Order in favour of the applicant, Ms. Wang in the face of all parenting time having been indefinitely suspended since November of 2022 by the respondent, Dr. Wang. I requested the assistance of the Office of the Children’s Lawyer (‘the OCL”) to provide counsel for the parties’ daughter, who I identified only by the initial “D,” and I set out a detailed, defined summer schedule.
[2] I further provided a timetable of tasks to be completed prior to a Settlement Conference to be held before me on September 13, 2023. Costs submissions on the Motion were to be completed by July 21, 2023. This is the endorsement arising from those submissions.
[3] Ms. Wang seeks a full recovery of her costs in the amount of $9,661.50 inclusive of HST, or alternatively, a partial recovery of either 80% or 60% being an award of $7,729.20 or $5,796.90 respectively. She is presumptively entitled to her costs because she was the successful party, pursuant to Rule 24(1) of the Family Law Rules (“the Rules.”)
[4] Dr. Tang asks that the parties bear their own costs because success was divided. Alternatively, he asks that costs be deferred pending a review of an anticipated report by the OCL which he believes will vindicate the reasonableness of his parenting actions. I decline to address the latter proposal pursuant to Rule 24(10) which requires that costs be promptly decided after each step in the proceeding, unless reserved. Neither can I take into account any future events or potential findings. Costs must be determined on the same record that gave rise to the determination.
[5] Neither party served an Offer to Settle this motion.
[6] For the reasons set out below I grant Ms. Wang costs of $6,780 payable forthwith.
Success Was Not Divided
[7] Pursuant to Rule 24(6) it is possible for success to be equally divided when there are multiple issues before the court and each party has achieved the same measure of success and/or failure.
[8] But not every issue is equally important, time-consuming, or expensive to determine. A court must make a comparative analysis of the issues and decern who achieved success on the dominant issue to be determined, see paragraph 66 of Jackson v. Mayerle, 2016 ONSC 1556.
[9] Dr. Tang proposes two indicia of success: the request for the OCL, and the fact that D’s travel over this summer was partially granted.
[10] Neither was a dominant issue. The first was a procedural Order that accorded with the court’s own volition. The second was a compromise to limit the harm already caused by Dr. Tang’s unilateral actions in planning D’s summer schedule without maternal involvement.
[11] I do not find that success was divided.
Dr. Tang’s Litigation Conduct Leading Up to the Motion Was Not Reasonable
[12] Within his costs submissions, Dr. Tang reargues his motion, asking me to find that his actions were appropriate, and child focussed. My reasons stand, particularly those set out at paragraphs 32 and 33.
[13] Dr. Tang goes on to suggest that the applicant’s request for mediation was only for a 4-way meeting. This is a form of dispute resolution and offers no more than a distinction without a difference.
[14] In any event, Dr. Tang acknowledges that he was unwilling to mediate any of the issues because he holds a pessimistic view of the outcome. He asks me to find that his refusal to mediate or to attempt a resolution to be reasonable to the circumstances given his views of the applicant.
[15] Reasonable litigation conduct is a much broader endeavor than the settlement of easy or obvious disputes. No matter how complex or personally vexing an issue may prove, a party is required to make all reasonable efforts to narrow the issues in dispute. Should the settlement in whole or in part remain elusive, then a party must carefully discern and marshal the evidence necessary to determine the issue.
[16] Here, Dr. Tang’s actions amounted to shutting the door on any discussions and carrying on as if D no longer had a mother. As set out in my reasons, his approach and how it was advocated were entirely off-side.
[17] Ms. Wang shall have her costs of the motion.
Amount of Costs
[18] As set out by the Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, costs rules are designed to change litigation behaviour by fostering 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 that cases are dealt with justly under subrule 2 (2) of the Family Law Rules.
[19] Dr. Tang makes no submissions as to the reasonableness of the amount of costs sought by Ms. Wang. At the same time, I cannot grant an award of costs as a blank cheque. I must carefully consider the factors as set out in Rule 24(12)(a) which read:
SETTING COSTS AMOUNTS
(12) In setting the amount of costs, the court shall 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. O. Reg. 298/18, s. 14.
[20] Ms. Wang’s Bill of Costs identifies a reasonable hourly rate for her counsel, but otherwise, provides no assistance to me in assessing the Rule 24(12)(a) factors. Any description of the timing of when tasks relevant to the motion were completed, the time spent, or even what was completed is wholly absent.
[21] Dr. Tang’s costs submissions are far more helpful. As recently set out by the Divisional Court in Zhang v. Guo, 2019 ONSC 5767 (Div Ct), a useful benchmark for determining whether costs claimed are fair, reasonable, and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter.
[22] Dr. Tang provides a comprehensive Bill of Costs showing total fees incurred of $12,028 plus HST.
[23] I am thus placed in an unusual dilemma: a successful party with an inadequate Bill of Costs showing a lesser amount of fees incurred than the unsuccessful party who has submitted a proper Bill of Costs.
[24] I am left to work within the following broad principles:
a. Ms. Wang was the successful party on the Motion and is presumptively entitled to an award of costs. b. An award of costs must be fair, proportionate, and reasonable to the circumstances of the case as presented on the record giving rise to the determination. c. I cannot assess the Rule 24(12) factors because Ms. Wang has not provided an appropriate Bill of Costs. d. I am not prepared to grant a full recovery of costs because Ms. Wang did not make any Offer to Settle. Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the Rules to deal with cases justly, which includes taking appropriate steps to save time and expense. Offers to settle play a critical role in saving time and expense by promoting settlements, focusing parties, and narrowing issues in dispute. Although there is no statutory obligation to make an Offer to Settle, in its absence, a judge is entitled to increase or decrease what would otherwise be the appropriate quantum, see Beaver v. Hill, 2018 ONCA 840. e. Court proceedings are expensive, time-consuming, and stressful for all concerned, particularly children who are caught in the middle of high conflict parenting disputes. A costs award ought to be sufficiently substantive to change litigation behaviour by injecting a cost-benefit analysis into the proceeding.
[25] In these circumstances, and in light of these broad principles, I grant Ms. Wang a partial recover of her fees in the amount of $6,000 plus HST of $780, for a total of $6,780.00 in costs, payable forthwith.
MCGEE J. Released: July 31, 2023