Court File and Parties
COURT FILE NO.: FC-21-60 DATE: 2023/08/15 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alison Ayotte, Applicant AND: Rodney Maurice Ayotte, Respondent
BEFORE: Somji J.
COUNSEL: Emily Murray, for the Applicant Respondent, Self-Represented
HEARD: In Writing
Costs Endorsement
[1] The Applicant mother seeks substantial indemnity costs in the amount of $7,637.90. The mother was successful on a motion brought by her for an order to one, compel the sale of certain properties pursuant to the Partition Act, R.S.O. 1990, c. P.4, two, allow for the release of a portion of proceeds from the previous sale of the matrimonial home to pay out the equalization she owes the father, and three, obtain a vesting order pursuant to the Family Law Act requiring the father to pay for child support owing to her from his share of the proceeds of the matrimonial home: Ayotte v. Ayotte, 2023 ONSC 2245
[2] As the successful party, the mother is presumptively entitled to costs: r. 24(1) of the Family Law Rules, O. Reg. 114/99 as am (“FLR”). The father did not provide a response to the mother’s cost submissions, and hence, the mother’s entitlement does not appear to be disputed. The only issue to be decided is what is a fair and reasonable cost award in the circumstances of this case.
[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] 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.
[6] 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
[7] Where a party behaves unreasonably, the court may grant elevated costs: 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.
[8] 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).
[9] 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:
If the offer relates to a motion, it is made at least one day before the motion date.
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.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[10] Even where r. 18(14) does not apply, the court must consider any offers made in exercising its discretion to award costs: r. 18(16) FLR; see also MacIntyre-McAlear v McAlear, 2018 ONSC 2815 at paragraphs 27, 31 to 35. 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.
[11] In this case, I find the father engaged in unreasonable conduct since the onset of this litigation, and his conduct warrants an elevated costs award. First, Justice Johnston issued a Temporary Order in November 2022 requiring the father to pay monthly child support, special expenses, and spousal support following a motion brought by the mother. The mother brought the motion because the father had not been complying with the terms of their separation agreement of December 2021. The father was credited for some child support, but did not pay any additional child support, s. 7 expenses, or spousal support ordered, until just hours before this motion was scheduled to be heard in January 2023.
[12] Second, in the week following the issuance of the November 3rd Order, the father sent inappropriate messages to the mother indicating he would not comply with the Temporary Order: Ayotte at para 10. It was following this conduct that the mother sought an order to release proceeds from the matrimonial home recognizing the unlikelihood of coming into any kind of agreement that would be respected by the father.
[13] Third, the father has been uncooperative with respect to the sale of the rental properties since the parties’ separation over four years ago. He was not able to make a reasonable offer to purchase the mother’s share as he lacked financing. He did not provide the mother any rental income from the properties over these years. He did not share with her the receipts and expenses for the jointly owned properties despite the mother’s multiple requests and a court order: Ayotte at para 34.
[14] Fourth, the mother made a favourable offer to settle (but not severable) as early as November 11, 2022, which required the parties to sell the properties and for the proceeds to remain in court pending further agreement of the parties. Each party would pay for their own costs. My decision resulted in the sale of the properties as well as a release of sufficient proceeds for the mother to pay out her equalization and be able to move forward with her life. I also issued a vesting order for the father to pay for child support owing to the mother from the proceeds of the matrimonial home which had previously been sold. For all these reasons, I find that the father engaged in unreasonable conduct warranting an elevated costs award.
[15] Finally, the mother points out the father was also unreasonable in refusing a short motion (45 minutes) as opposed to a long motion (1 hr). I do not find this a determinative factor for quantum of costs. A long motion was necessary given the complexity of the issues to be decided.
Complexity of issues, time spent, rates, and ability to pay
[16] This was a high conflict matter. Two of the three issues were reasonably complex. The mother indicates that 95% of her fees were spent on compelling the sale of the properties. The total costs of the motion were $9,547.37 for 47.88 hours of work. Time was spent researching legal issues, preparing materials for the motion and costs submissions, preparing a written factum and reply to the opposing party’s arguments, corresponding with the client and the opposing party, and attending court. Counsel charged $175/hr which was more than reasonable for her five years of experience. A very small amount of assistance was also provided by senior counsel of 26 years’ experience at only a marginally higher rate of $200/hr. I find the hours and rates are commensurate with the work done
[17] The father has not provided any indication that he is unable 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), 2004 CanLII 14579 (ON CA), 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 $7500 is fair and reasonable in this case.
Order
[24] The father will pay the mother costs in the amount of $7500. The costs are to be paid out of the funds held in trust with the real estate lawyer from the sale of the matrimonial home.
Somji J.
Released: August 15, 2023
COURT FILE NO.: FC-21-60
DATE: 2023/08/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Alison Ayotte, Applicant
AND:
Rodney Maurice Ayotte, Respondent
BEFORE: Somji J.
COUNSEL: Emily Murray, for the Applicant
Respondent, Self-Represented
COSTS ENDORSEMENT
Somji J.
Released: August 15, 2023