Court File and Parties

COURT FILE NO.: FC-20-102 (Simcoe) DATE: 2023/09/19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Joseph Duwyn, Applicant AND: Lyndsey Leeanne Ross, Respondent

BEFORE: The Honourable Justice M.J. Valente

COUNSEL: Andrew A. Nicolls, for the Applicant William R. Clayton, for the Respondent

HEARD: Written Submissions Filed

COSTS ENDORSEMENT

Introduction

[1] Following ten days of trial, I issued my Reasons for Judgment, dated May 26, 2023, which resolved several disputed issues including decision-making responsibility, parenting time, retroactive child support and the name of the parties ‘child, Matthew.

[2] In my Reasons for Judgment, I encouraged the Applicant and the Respondent to agree on the issue of costs, but directed, if they were unable to do so, I would be prepared to entertain written costs submissions. I now have the parties’ submissions, and this is my ruling with respect to the issue of costs.

Positions of the Parties

[3] The Applicant seeks his lawyers’ fees on a full recovery one hundred percent basis for the period of June 4, 2019 to March 16, 2023 in the amount of $140,741.02 plus disbursements. I note, however, included in the $140,741.02 amount is his counsel’s invoice, dated October 27, 2021, in the sum of $2,147.00 for legal fees and HST but erroneously recorded as $12,174.00 in the Applicant’s Bill of Costs. Considering this inadvertence, the Applicant properly seeks recovery of his counsel’s fees inclusive of HST in the amount of $130,741.02 plus disbursements inclusive of HST of $4,316.95 for the total amount of $135,057.97.

[4] The Applicant submits that he is entitled to one hundred percent recovery of his legal fees and disbursement because he was the successful party at trial. He maintains that the two dominant issues in dispute at trial, decision making and parenting time, were decided in his favour. The Applicant also relies on his offer to settle, dated November 22, 2021 (the ‘Applicant’s Offer’) which, in his submission, mirrors the final order of this court of May 26, 2023. Furthermore, the Applicant asserts that the Respondent took unreasonable positions at trial by asserting false allegations of his intention to abscond with Matthew to Belgium, reopening the retroactive child support issue and raising questions with respect to this court’s jurisdiction to settle the matter of Matthew’s name. Finally, the Applicant submits that he is entitled to be indemnified on a one hundred percent basis because the Respondent acted in bad faith by asserting false allegations of domestic violence and parental misconduct.

[5] For her part, the Respondent asserts that each of the parties should be responsible for their own costs, and in the alternative, the Applicant should be awarded costs in an amount not to exceed $50,000.00 inclusive of disbursements and HST.

[6] It is the Respondent’s position that the Applicant was not successful at trial. Whereas the Applicant sought sole decision-making responsibility, joint decision making was ordered. The Applicant also sought an order that he be the weekly daycare provider, an order respecting the sharing of special occasions with Matthew and an order preventing the Respondent from moving outside of the county of Norfolk, none of which were ordered by this court in the May 26, 2023 decision. The Respondent also relies on the decision of Malec v. Malec, 2020 ONSC 7621, to argue that offers to settle are not a consideration in determining success. In any event, the Respondent submits that no cost consequences flow from the Applicant’s Offer because strict compliance with all five conditions of Rule 18(14) of the Family Law Rules, O. Reg 114/99, as amended, (the ‘Rules’) is required, and in this instance, the Applicant failed to secure an order as favourable as or more favourable than his offer. The Respondent also argues that there is nothing in her conduct during the proceedings which warrants a cost sanction; indeed, her offers of August 10, 2021 and September 30, 2022 demonstrate her reasonableness in attempting to reach a resolution of the issues. It is the Respondent’s position that both parties’ behaviour contributed to the marriage breakdown and there is no reason to penalize her alone for bad behaviour pursuant to Rule 24(12)(a)(i). Moreover, the Respondent submits that at no time did she act in bad faith. Specifically, the steps she took in naming Matthew and deciding not to recognize the Applicant as the child’s father at birth were based on sound legal advice. Finally, it is the Respondent’s position that all legal fees incurred from April 4, 2019 to September 16, 2021 should be discounted to zero because the issues contested during this time period were resolved by Minutes of Settlement, dated September 16, 2021 (the “Minutes”) and the Final/Partial Order of Justice MacLeod, dated February 22, 2022 (the “MacLeod Order”) on a without costs basis.

Guiding Principles

[7] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court. Rule 24 sets out a framework for awarding costs in family law cases in the Superior Court of Justice: Mattina v. Mattina, 2018 ONCA 876, (‘Mattina’) at para 9.

[8] Modern family law cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants (see: Serra v. Serra, 2009 ONCA 395 (‘Serra’)). Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly (see also: Mattina).

[9] Rule 24(12) sets out the factors relevant to setting the amount of costs. It also specifically emphasizes “reasonableness and proportionality” in any cost award (see: Mattina, at para. 10, citing Serra, at para. 8 and Sambasivam v. Pulendrarajah, 2012 ONCJ 711, at para. 37). The Rule 24(12) factors include the complexity and difficulty of the issues, each party’s behaviour in the litigation, the lawyer’s hourly rate, the time spent and any other relevant matters. All these factors are to be applied flexibly (see: C M. (A.C.) v. M. (D.), (2003), 67 O.R 181 (Ont. C.A.). The reasonable expectations of the unsuccessful party can assist in determining an amount that is fair and reasonable. Cost awards must also reflect some proportionality to the actual issues argued, rather than an unchecked reliance on billable hours (see: Mason v Smissen, [2013] O.J. No. 4229).

[10] Rule 24(1) creates a presumption of costs in favour of the successful party in a motion, trial, or appeal. Success is the starting point in determining costs. An award of costs is subject to Rule 24(4) pertaining to unreasonable conduct, Rule 24(8) regarding bad faith and the reasonableness of the costs sought by the successful party (see: Mattina, at paras 12-13; Sims-Howarth v. Bilcliffe, at paras 1-2; Berta v. Berta, 2015 ONCA 918, at para. 94.)

[11] The Rules do not provide for a general approach of “close to full recovery” of costs. Instead, Rule 24(12) sets out the appropriate considerations in fixing a quantum of costs. As the wording of the Rule makes clear, and as noted above, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs (see: Beaver v. Hill, 2018 ONCA 840 (‘Beaver’), at paras 11-12,19).

[12] The Rules expressly contemplate full recovery costs in specific circumstances, such as when a party has behaved unreasonably, acted in bad faith, or beat an offer to settle under Rule 18(4). Rule 24(4) addresses situations where a successful party has behaved unreasonably, and Rule 24(5) provides guidance on how to evaluate reasonableness. Rule 24(8) discusses the costs consequences of a party who has acted in bad faith (see: Mattina, at paras 15-18, Beaver, at para. 13).

[13] In order to be considered bad faith, the behaviour must be carried out with an intent to inflict financial or emotional harm on the other party, to conceal information relevant to the issues or to deceive the other party or the court (see: S. (C.) v. S. (M.), at para. 16).

Discussion

[14] I find that the Applicant was the successful party at trial within the meaning of Rule 24(1). Success is determined in relation to the dominant issues (see: O’Connor v. Merlo, 2021 ONSC 149, at para. 22). As the Applicant asserts, decision-making and parenting time were the dominant issues at trial. While the Applicant sought sole decision-making responsibility, so too, did he seek, in the alternative, joint decision-making responsibility with the Respondent. I found that an order for joint decision making was in the best interest of Matthew. On the other hand, I rejected the Respondent’s request for sole decision-making responsibility, and in the alternative, final decision-making power with respect to all matters involving Matthew as well as the Respondent’s request that Matthew’s primary residence be with her. The Respondent’s refusal to cooperate with the Applicant in parenting Matthew is the only reason that my joint decision-making order is coupled with a parallel decision-making order.

[15] Likewise, I rejected the Respondent’s proposed parenting schedule which would have seen the Applicant continue to have parenting time with Matthew two days per week until the beginning of the school term earlier this month. With the beginning of school, the Respondent’s proposal reduced the Applicant’s time with Matthew to very limited periods before and after school every second week. Instead, I agreed with the Applicant’s position that a rotating 2-2-3 parenting schedule was in Matthew’s bests interests to ensure equal parenting time with each of the parties.

[16] While I acknowledge that the Applicant did not secure orders making him the weekly daycare provider, stipulating the sharing of special occasions, and preventing the Respondent from relocating outside of the county, none of these issues were pursued at trial. In particular, the matter of sharing special occasions with Matthew was not addressed at trial because the issue was settled prior to trial. On the other hand, the Applicant did argue at trial for the dismissal of the Respondent’s retroactive child support claim, the parenting exchange to take place at Matthew’s school, the addition of his last name to Matthew’s surname in alphabetical order with that of the Respondent’s and for an amendment to the child’s registration of birth to acknowledge him as the father. All these requests were granted by this court.

[17] Therefore, in all these circumstances, I find that the Applicant was the successful party at trial and is thereby presumptively entitled to his costs. I also find that there is no reason to displace the presumption.

[18] I find that the Applicant is the successful party without any consideration of the Applicant’s Offer in acknowledgment of the Respondent’s position that offers to settle are not a consideration in determining success. Nonetheless, the Applicant did make an offer on November 22, 2021. The Respondent concedes that pursuant to Rule 18(16), the court may take the Applicant’s Offer into consideration in exercising its discretion on the issue of costs. Having said that, the Respondent maintains the position that no cost consequences arise from the Applicant’s Offer. I reject this submission, however, because in my opinion, the court is not required to examine each term of the offer as the Respondent would suggest. Rather, in my view, the court is to undertake a general assessment of the overall comparability of the offer to the order (see: Wilson v. Kovalev, 2016 ONSC 163, at para. 25). Based on this general assessment I find that the May 26, 2023 Judgment was as favourable as the Applicant’s Offer on the key issues of decision making and parenting time as well as the vacation schedule, retroactive child support, and Matthew’s birth registration and name. If I am wrong, however, in my determination that each term of the Judgment need not be as favourable as each term of the Applicant’s Offer to invoke the increased cost consequences of Rule 18(14), I note that Rule 18(16) provides that in exercising my discretion with respect to costs, I may take into account any written offer, the date it was made and its terms, even in the event that Rule 18(14) does not apply.

[19] It is also my opinion that the Applicant is entitled to a cost award in excess of the partial indemnity scale from November 22, 2021 by reason of the Respondent’s unreasonable behaviour during the course of the litigation. While I accept without reservation that the Respondent complied with all temporary orders of this court, provided full disclosure, worked to resolve a variety of issues prior to trial and made efforts to settle the outstanding issues, it also does not escape me that the Respondent left no rock unturned during the litigation to restrict the Applicant’s role in Matthew’s life. Setting aside the Respondent’s refusal to acknowledge that the Applicant loved his son and to cooperate with the Applicant in a joint decision-making arrangement, I found that there was no rational basis for her allegation that the Applicant represented a real threat to kidnap Matthew. Similarly, I find that the Respondent acted unreasonably in advancing ill-founded allegations of domestic violence and parental misconduct. Although I do not find that the primary purpose of these allegations was to inflict harm on the Applicant, they nonetheless were designed to achieve the Respondent’s goal of being granted sole decision-making responsibility and limiting the Applicant’s parenting time at all costs, including unnecessarily complicating the litigation and protracting the time required to complete the trial. Therefore, in my view, the Respondent’s unreasonable behaviour in combination with the Applicant’s Offer attract an award of costs in favour of the Applicant at the higher end of the substantial indemnity scale from November 22, 2021.

[20] I calculate the Applicant’s fees inclusive of HST to September 21, 2021 to be in the amount of $33,109.00. I have considered the Respondent’s submission that these fees should not be considered in my cost assessment because the outstanding issues as at this date were resolved on a without cost basis. I do not agree. Firstly, I accept the Applicant’s position that not all of the services rendered prior to September 21, 2021 were resolved by the Minutes and MacLeod Order. These services would include the drafting of the application and conference briefs, attendances at court and motions correspondence as related to parenting time and decision-making responsibility. Secondly, neither the Minutes nor the MacLeod Order provide that the settled issues are resolved on a without cost basis but rather are silent as the issue of costs. Where an earlier endorsement is silent as to costs, the endorsement does not disentitle a litigant from recovering costs for any time up to the date of the endorsement (see: Gogas v. Gogas, 2011 ONSC 5368, at paras 4-5). Having said that, and without any further evidence of the parties’ intentions, I am of the opinion that a fifty percent reduction in the fees for this time period, or a reduction of $16,554.50, would be in order as opposed to the $10,000 reduction suggested by the Applicant.

[21] I have also considered the Applicant’s lawyer’s hourly rate of $395 per hour and determine it as reasonable given his level of experience. It is also my view that the time expended by Applicant’s counsel was reasonable in all of the circumstances. I have also taken into account that with the discount afforded to the Applicant by his lawyers from the date on which the Respondent’s currently counsel was retained (specifically, April 1, 2022), the Applicant incurred approximately $90,000 in fees and disbursements as compared to the Respondent’s expenditure of some $128,000.

[22] Having regards to all these factors, and in the exercise of my discretion, I assess the Applicant’s costs as follows:

a) Discounted fees inclusive of HST to September 21, 2021 of $16,554.50 assessed on the partial indemnity scale at 60% $9,932.70

b) Fees inclusive of HST from September 22, 2021 to November 21, 2021 of $5,254.00 (being account of October 27, 2021 plus one half of December 20, 2021 account) assessed on the partial indemnity scale at 60% $3,152.40

c) Fees inclusive of HST from December 17, 2021 to March 16, 2023 of $92,377.50 assessed on the substantial indemnity scale at 80% $73,902.00

d) Disbursements inclusive of HST $4,316.95

Total $91,304.05

Disposition

[23] It is therefore ordered that the Respondent pay to the Applicant his costs of the proceeding fixed in the amount of $91,304.05, rounded to $90,000., all inclusive. This award will accrue post judgement interest if not paid within ninety days from the date of release of this Cost Endorsement at the rate prescribed by the Court of Justice Act.

M. J. Valente, J. Released: September 19, 2023

COURT FILE NO.: FC-20-102 (Simcoe) DATE: 2023/09/19 ONTARIO SUPERIOR COURT OF JUSTICE Robert Joseph Duwyn – and – Lyndsey Leeanne Ross Cost Endorsement M. J. Valente, J. Released: September 19, 2023