Court File No.: F157/19-02

DATE: 2023/12/04

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Campbell William MacGougan, Applicant/ Responding Party

AND:

Candace Dianne Bill, Respondent, Moving Party

BEFORE: T. PRICE J.

COUNSEL: Genevieve M. Samuels - Counsel for the Applicant/Responding Party

P. Allen Skuce - Counsel for the Respondent/Moving Party

HEARD: By written submissions

Costs Endorsement

Overview

[1] In my Reasons for Judgment (MacGougan v. Bill, 2023 ONSC 4605), I “strongly encouraged” the parties to settle the issue of costs. Despite that encouragement, they were unable to do so. I must, therefore, now determine which party is entitled to costs and in what amount.

[2] Before doing so, I first address an issue raised by Mr. Skuce, counsel for Ms. Bill, in a motion form (Form 14B) filed after both parties had filed their costs submissions.

Post-Cost Submissions Form 14B Motion on behalf of Ms. Bill

[3] In his motion form which was accompanied by an affidavit sworn by Ms. Bill, Mr. Skuce requested an order “staying” Mr. MacGougan’s claim for costs.

[4] The request was based upon the fact that Ms. Samuels had referred in her costs submissions to a mid-trial settlement meeting in which the parties participated with Justice Campbell. The reference included the recounting of a settlement recommendation said to have been made to the parties by Justice Campbell, which Ms. Bill had rejected.

[5] In her affidavit, Ms. Bill deposed that, had she known that the discussions with Justice Campbell would be referred to by Mr. MacGougan or his counsel, she would not have participated in the meeting. She further deposed that the reference by Ms. Samuels to Justice Campbell’s recommendation appeared to violate Rule 17(23) and was “highly prejudicial” to her. On that basis, she claimed that “[n]o remedy short of staying the Applicant’s application for costs will satisfy me that I have not been prejudiced by this improper written submission.”

[6] In her response, Ms. Samuels made several submissions, including that there was no violation of Rule 17(23) since the meeting with Justice Campbell was not a “formal Settlement Conference.” As a result, she submitted, she was not precluded from referring to the opinion expressed by Justice Campbell during the meeting because it “directly relates to the issue of evaluating reasonableness of the parties and the possible recovery of costs based on outcomes achieved versus relief sought.” In the alternative, she submitted that, if the meeting was akin to a formal Settlement Conference, there is conflicting caselaw on the issue of the appropriateness of referring to the discussions in such meetings when making costs submissions.

[7] She further submitted that, without an ability to seek costs based on mid-trial settlement meetings, there would be little incentive for parties to participate in them.

[8] Lastly, submitting that the suggestion of a “stay” of costs was wholly disproportionate to the issue at hand, she suggested that, if I were to be of the view that she ought not to have referred to the meeting with Justice Campbell, the appropriate remedy would be to simply strike or disregard the offending paragraph in her costs submissions and “continue on with the determination of costs.”

[9] Ms. Samuels should not have referred to the meeting with Justice Campbell in her costs submissions.

[10] The purpose of the meeting was to provide the parties, who by then had participated in the trial and heard some of the evidence, with an opportunity to have an open discussion with a Justice not seized with the proceeding, listen to his recommendations, and determine whether they might facilitate a resolution, thereby both shortening the trial and bringing a conclusion both to their dispute and their expenses.

[11] Informing me about Justice Campbell’s recommendations was, frankly, irrelevant to my task in setting costs in accordance with the principles derived from cases which have considered, as appropriate, Rules 18 and 24. While that process includes that I consider settlement offers, Justice Campbell’s recommendations were not intended to set a costs trap for a party who does not accept them, sprung in the event that the other party does. Justice Campbell was trying to assist the parties. No one was bound to accept what he suggested. Therefore, whether a party acted reasonably or not in acting on his recommendations is not and should not be a consideration in the setting of costs.

[12] I also disagree with Ms. Samuels that, without attaching a potential costs consequence to not accepting a recommendation made by a Justice during a mid-trial settlement meeting, there would be no incentive for litigants to participate in them. I suspect that few family law litigants and, I hope, fewer lawyers, would be so certain about the outcome of their case as to conclude that there is no benefit to be gained from listening to the views of an experienced trial judge unless a potential financial benefit attached to doing so. I have not yet reached that level of cynicism.

[13] I do, however, agree with Ms. Samuels that, notwithstanding the disclosure of the recommendation made by Justice Campbell, the appropriate remedy is for me to simply disregard the offending submission. (Bordynuik v. Bordynuik, 2008 39219 (ON SC), [2008] O.J. No. 3049 at para. 8 (S.C.J)). That is what I have done.

Order

[14] For the reasons that follow, I order Ms. Bill to pay costs of this proceeding to Mr. MacGougan in the amount of $27,000.00, all inclusive.

Synopsis of Parties’ Positions

[15] Mr. Skuce advised that Ms. Bill is not seeking any order for costs. He submitted that success in the case was divided, so each party should bear their own costs. Particulars of his submissions will be reviewed at appropriate points in this endorsement.

[16] Ms. Samuels, on the other hand, while “acknowledging formally” on behalf of Mr. MacGougan that success in the case “may be somewhat divided,” took the position that Mr. MacGougan was more successful on the issues. Consequently, she advised that Mr. MacGougan is seeking costs in the amount of $72,500.00, all inclusive.

Applicable Family Law Rules

[17] Family Law Rules 18 and 24 are most pertinent to a costs determination. Rule 18 relates to offers to settle. Rule 24 lists the factors that a judge must consider when determining costs.

[18] While these rules have not eliminated judicial discretion, they nonetheless circumscribe the broad discretion previously granted to the courts in setting costs.[^1]

Rules 24(1) and 24(6)

[19] Rule 24(1) is the starting point in a costs analysis.[^2] It provides that there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case, or appeal. The presumption in Rule 24(1) can, however, be rebutted if the successful party has behaved unreasonably during the case or if success is divided.[^3]

[20] Consequently, Rule 24(1) must be considered in conjunction with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate.[^4]

[21] Justice Pazaratz wrote at paragraph 66 in Jackson v. Mayerle that, “[d]ivided success” does not necessarily mean "equal success.” And "some success" may not be enough to impact on costs.”

[22] Justice D. Chappel articulated the court’s task at this point at paragraph 14 of Arthur v. Arthur:

The determination of whether success was truly "divided" does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.))

Determining Success

[23] Justice Pazaratz wrote the following about this process at paragraph 22 of Jackson v. Mayerle:

“To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made (Lawson v. Lawson, [2008] O.J. No. 1978, 2008 23496 (S.C.J.)).

[24] Therefore, to determine which of the parties has been successful or, if both were to some extent, I begin by comparing the order I made to the parties’ settlement offers.

Offers to Settle

[25] The parties exchanged three formal offers to settle. Mr. Skuce provided two and Ms. Samuels one.

Ms. Bill’s First Offer, dated January 9, 2023

[26] This offer did not have an expiry date. Under its terms, the core elements of Justice Campbell’s original order were to remain in place, with changes which would have:

a. reduced Mr. MacGougan’s parenting time with C2;

b. required the parties to participate in family therapy with a new therapist; and

c. opened a pathway for the children’s surnames to be changed if, once their consent was legally required to be obtained, they provided consent.

[27] In my view, the provision concerning the change of the children’s names was meaningless in a costs analysis because a change in the children’s names was not relief sought in the pleadings. It was, in effect, an offer to settle a non-issue.

[28] Using this offer as a yard stick, Ms. Bill was clearly not the overall successful party. While she achieved success in maintaining status quo parenting time for C1, a lesser issue, and partial success on her proposal for the continuation of family therapy, Mr. MacGougan succeeded on the major issue, which was his parenting time with C2.

Mr. MacGougan’s Offer dated January 25, 2023

[29] Mr. MacGougan’s offer was compendious and complex. It included many terms which Ms. Samuels labelled “incidents of parenting,” the majority of which were neither specifically pleaded nor claimed in the prayer for relief set out in Mr. MacGougan’s response to Motion to Change.

[30] The offer was divided into several parts. The parts could be accepted individually or in combination with other parts, but no part could be subdivided for partial acceptance. The parts addressed decision-making authority, a regular parenting schedule, a holiday parenting schedule and child support.

[31] The offer remained open for acceptance until withdrawn. Costs were to be payable by Ms. Bill at increasing rates as the trial drew nearer, depending upon when she might accept the offer.

Ms. Bill’s Second Offer, dated February 3, 2023

[32] Ms. Bill’s second offer largely mirrored that of Mr. MacGougan. It was divided into the same four parts as Mr. MacGougan’s offer, each of which could be accepted in their entirety, either combined with or apart from the other parts. Like Mr. MacGougan’s offer, the parts could not be subdivided for partial acceptance.

[33] This offer expired one minute prior to the commencement of trial and, like Mr. MacGougan’s offer, it provided for increasing costs the closer to trial it, or any part of it, may have been accepted.

[34] In attempting to determine which of the parties, if either, or both, might be found to be the successful party, I propose to compare the trial result to each of these structurally similar, but substantively different, latter two offers.

Comparing the Final Two Offers to Settle Against the Trial Order

[35] The judgment was crafted to primarily address four significant issues raised in the proceeding. They were:

a. whether there had been a material change in circumstances with respect to either parenting time or decision-making responsibility that affected or was likely to affect the best interests of C2;

b. if there had been a material change in such circumstances, or either of them, with respect to C2, what change or changes, if any, to Justice Campbell’s order should have been made in her best interests;

c. whether there had been a material change in circumstances with respect to either parenting time or decision-making responsibility that affected or was likely to affect the best interests of C1; and

d. if there had been a material change in such circumstances, or either of them, with respect to C1, what change or changes, if any, to Justice Campbell’s order should have been made in his best interests.

Issues in Respect of Which Ms. Bill was the Successful Party

[36] I find that Ms. Bill was the successful party in respect of the following issues, whether specifically pleaded or not:

a. whether or not there had been a material change in circumstances for C2 since the order of Justice Campbell on February 14, 2020;

b. Mr. MacGougan’s parenting time with C1 remaining unchanged; and

c. holiday parenting time for both children.

[37] Whether or not there had been a material change in circumstances was the threshold issue that had to be determined before any consideration could be given to changes to Justice Campbell’s order as it pertained to either of the parties’ children.

[38] Ms. Bill was clearly the successful party on the issue of a material change in circumstances having occurred with respect to C2, given my finding to that effect and Mr. MacGougan’s position that there had been no such material change.

[39] Given that there was no material change in circumstances with respect to C1, Ms. Bill’s proposal to leave C1’s parenting time as it existed under the order of Justice Campbell made her the successful party as to this issue. However, this issue was of less significance than parenting time for C2, as were the other, ancillary issues about which Ms. Bill had some success.

Issue in Respect of Which Mr. MacGougan was the Successful Party

[40] I find that Mr. MacGougan was the successful party in respect of his parenting time with C2.

[41] While he had not been successful in respect of the issue of whether there had been a material change in circumstances for C2 since Justice Campbell made his order on February 14, 2020, once that finding had been made, the door opened to what changes, if any, ought to be made to the order with respect to his parenting time with C2.

[42] I find that Mr. MacGougan’s offer of a graduated return to the week-about shared parenting regime that existed in the order of Justice Campbell was closer to the result that I ordered. While C2 will not be spending the entirety of each week with one of her parents on a rotating basis, she will be spending the greater part of each week with one of her parents over the other on a rotating basis. Ms. Bill’s offer allowed for a slower return to a bi-weekly shared parenting regime that had C2 in the care of each parent for shorter periods each week than the schedule I set in my order.

Other Issues

[43] I also find that:

a. both parties were equally successful in respect of whether or not there had been a material change in circumstances for C1 since the order of Justice Campbell on February 14, 2020;

b. success was divided, more or less equally between the parties, in respect of the following issues:

i. decision-making responsibility for the children,[^5] as the term is defined in s. 18 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12;

ii. the children’s extracurricular activities;

iii. the children’s passports and their renewals;

iv. child support and s. 7 expenses;

and

c. success cannot be determined in respect of several of the so-called “incidents of parenting” because:

i. of the complexity of the offers when compared to my final order in respect of them; or

ii. they were not claimed as relief in the parties’ pleadings.

[44] The judgment left in place joint decision-making responsibility, which was consistent with the initial decision-making mechanism proposed by each of the parties. In the event of an impasse, the judgment divided final decision-making responsibility between the parties with respect to the aspects of the four specifically enumerated in the CLRA, and about which child each would have final decision-making responsibility, rotating that authority on an annual basis.

[45] In a sense, the judgment is a bit of a mixture of the parties’ positions as set out in the offers. Ms. Bill suggested that the court would have the final say in cases of dispute over issues about which decisions had to be made. The judgment did that, only it spoke to process rather than a specific contentious decision. Mr. MacGougan, on the other hand, suggested that he would have final say when the parties cannot agree on a decision. In a sense, he succeeded on that point, but only partially since each party has the final decision in respect of some issues for each child each year on a rotating basis. Thus, success on this issue was divided, with the manner in which they get to determine extracurricular activities providing an example of an issue which both parties addressed in their mirror offers.

[46] The parties settled retrospective interim child support before the commencement of the trial. The settlement provided that the terms would be subject to change at trial.

[47] Both parties proposed in their mirror offers that ongoing child support be payable in accordance with the Child Support Guidelines. They only differed as to whether child support for C2 would be paid pursuant to s. 3 or s. 9 of the Guidelines, and as to the starting date. Because the order directed that child support be payable pursuant to section 9 of the Guidelines commencing September 1, 2023, it aligned slightly more closely with the specifics of Mr. MacGougan’s offer.

[48] Furthermore, the order applied the principle, proposed by both parties, that the s. 7 expenses be divided proportional to their incomes.

[49] In seeking to amend Justice Campbell’s order as it pertained to C1 by adding many of the so-called “incidents of parenting,” it appeared that Ms. Samuels was trying to effect changes to the order as it pertained to C1 while denying that there had been a threshold material change in circumstances. As a result, I rejected many of the changes that she sought with respect to him. Some, however, which I regarded as procedural in nature rather than substantive, were included in my order, both because Justice Campbell’s order was silent as to those matters or because they were agreed to by Ms. Bill in her second offer.

[50] As a result, I further find that both parties were equally successful in respect of some of the so-called “incidents of parenting” because their offers mirrored one another.

Conclusion Regarding the Successful Party

[51] While Ms. Bill was the successful party with respect to whether there had been a material change in circumstances with respect to C2, once that issue had been resolved, Mr. MacGougan was clearly the successful party with respect to his parenting time with her.

[52] This is significant because this is the issue that drove the litigation. To put it bluntly, Ms. Bill commenced the Motion to Change because she sought to reduce Mr. MacGougan’s parenting time with C2. Having triggered the litigation, Ms. Bill ended up with a parenting order for C2 which more closely aligned with that which she sought to avoid and Mr. MacGougan sought to maintain.

[53] As a result, I find that Mr. MacGougan was the more successful party because of his success on the major issue which drove the litigation. However, that success, as reflected in the costs that I set, will take into account Ms. Bill’s success on the issue of whether there was a material change in C2’s circumstances.

Rule 18(14)

[54] Neither party made the argument that they should be entitled to enhanced costs under Rule 18(14). Their silence on this issue was merited. Based upon my consideration of the offers, I find that all failed to meet the threshold for enhanced costs under Rule 18(14) because, whether on an issue-by-issue basis or, overall, it cannot be said that either party obtained an order which was either as favourable as or more favourable than their offer.

Rules 18(16) and 24(12)(a)(iii)

[55] Notwithstanding my conclusions as to the inapplicability of Rule 18(14), Rule 18(16) authorizes me, when exercising my discretion over costs, to consider any written offer to settle, the date it was made and its terms, “even if subrule (14) does not apply.”

[56] Additionally, Rule 24(12)(a)(iii) requires that, when I am setting costs, I must consider “any written offers to settle” including those which do not meet the requirements of Rule 18.

[57] Accordingly, the parties’ offers will again be considered when I examine the Rule 24(12)(a) factors in the setting of costs in this case.

Rules 24(4) and 24(5) - Successful Party Behaving Unreasonably

[58] Rule 24(4) provides that, even if found to be successful pursuant to the presumption in Rule 24(1), a “successful party who has behaved unreasonably during the case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.”

[59] As I have already determined, each of the parties had some measure of success in respect of different issues.

[60] Rule 24(5) sets out the parameters that I must examine in determining a party behaved unreasonably. Those parameters consist of:

(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 made by the party; and

(c) any offer the party withdrew or failed to accept.

Parties’ Behaviours in Relation to the Issues

[61] In her submissions on behalf of Mr. MacGougan, Ms. Samuels asserted that he acted reasonably throughout the proceeding, and took steps “to resolve issues quickly and efficiently, correctly focusing on the need for family counselling and good communication with” Ms. Bill.

[62] In his submissions on behalf of Ms. Bill, Mr. Skuce submitted that Mr. MacGougan’s unwavering requirement that the court order include a police enforcement clause was unreasonable. He called it “a single issue which by itself inflamed the conflict and possibly prevented the resolution of these proceedings without a trial.”

[63] In the only offer to settle served by Ms. Samuels on behalf of Mr. MacGougan, as well as the draft order that she presented at trial, the police assistance order sought by Mr. MacGougan, if granted, would expire on December 31, 2023.

[64] The decision of Justice Pazaratz in Powell v. Patterson, 2014 ONSC 1419, [2014] O.J. No. 985 indicates that it is not enough for a party seeking a police enforcement clause as an enforcement tool for future anticipated breaches of a court order to simply request the clause. Justice Pazaratz also wrote of the trauma that such orders can inflict on older children who have already been exposed to parental conflict.

[65] I was provided with no justification for Mr. MacGougan’s police assistance request. While I attributed much of the blame for C2’s refusal to attend for parenting time with Mr. MacGougan to Ms. Bill, I also referred to C2’s emotional state as a component for her refusal to attend. I further noted that C2 had a long-standing anxiety at separating from her mother that existed from the time of the parties’ separation. In those circumstances, it was unreasonable for Mr. MacGougan to have continued to insist upon the inclusion of a police assistance order, without seeking to justify it at trial. I cannot find, however, that his insistence on the inclusion of this clause “prevented the resolution of these proceedings without a trial,” nor do I go so far as to conclude that his request for such an order should have a significant negative effect on his claim for costs.

[66] I was also troubled by the involvement of Mr. MacGougan’s partner, Ms. Kelly, as an active participant in the proceeding. Mr. MacGougan’s willingness to allow her to direct some of his interactions with Ms. Bill, when she bore a clear animus towards Ms. Bill, in my view, constituted unreasonable behaviour. As I noted previously, she was too heavily involved in this litigation. For that, Mr. MacGougan bears responsibility.

[67] Ms. Samuels argued that it was unreasonable for Ms. Bill “to refuse expanded parenting time in light of guidance provided by therapists working with the family.” She submitted that Ms. Bill’s resistance “was premised on outdated beliefs C2 would not be able to handle a shared schedule but refused to consider incremental increases to test that position.” To that point, I found that Ms. Bill had slow-walked any possibility of increasing C2’s time being parented by Mr. MacGougan, expressing concern about how the child might react, but without an evidentiary foundation for such a position, given C2’s success at being in her father’s care for a trip to Mexico.

[68] While Ms. Bill did seek, through a motion, to address parenting time pending trial, I agree that she ought to have agreed to incremental increases in parenting time for C2 in an effort to ascertain the extent to which her parenting time with Mr. MacGougan could be expanded.

[69] I also agree that Ms. Bill appeared to cling to the more limited and admittedly dated report of Ms. McHardy as a basis for not agreeing to increases in C2’s parenting time. While I acknowledge the submission of Mr. Skuce that Ms. Bill felt challenged by navigating the sometimes apparently conflicting advice provided by Ms. McHardy, Ms. Hill, and Ms. DeVeto, I did note there were commonalities in their positions.

[70] Additionally, I found Ms. Bill’s continued animosity toward Mr. MacGougan to lie at the heart of much of the difficulty in this case, an animosity of which C2 was well aware. While I acknowledge the submission of Mr. Skuce that Ms. Bill testified with sincerity that she bore no antipathy toward Mr. MacGougan, He did, however, also acknowledge that I had disbelieved some of Ms. Bill’s evidence.

[71] I further agree with Ms. Samuels that Ms. Bill was unreasonable with respect to issues pertaining to when the children would be on holiday with Mr. MacGougan, the obtaining of passports, the potential change of their name and, particularly, bizarrely insisting on the continued use of a GPS tracker for C2 which led to a less than flattering endorsement by Justice Heeney and costs against Ms. Bill on a motion to address that issue.

[72] I do not accept Ms. Samuels’ submissions that Ms. Bill “pursued claims for sole decision-making authority of the children until the commencement of trial” and that any success she achieved at trial on this issue “is lessened by the fact that her position changed only at trial opening.”

[73] Those submissions are not consistent with the documents.

[74] Ms. Bill’s first offer, dated January 9, 2023, which contained no proposal for a change in the joint decision-making responsibility [“custody”] regime put in place by Justice Campbell, was made two months before the commencement of trial. Her second offer was dated February 3, 2023, one month before the commencement of trial. It proposed that the parties would have joint decision-making responsibility.

[75] An offer made one month before the trial is not made “at trial opening.” Ms. Bill’s offers on the issue of decision-making responsibility do not reflect the “[pursuit of a claim] for sole decision-making authority of the children.” Ms. Samuels had to have known at least two months before the commencement of trial that Ms. Bill was prepared to settle on leaving in place joint decision-making responsibility.

[76] I do acknowledge writing in my decision that Ms. Bill was seeking sole decision-making responsibility for C2 which, I now understand, was not correct when the matter was tried. Ms. Samuels did not take issue with Mr. Skuce’s assertion that Ms. Bill’s position on this issue had changed from that articulated in her Motion to Change. Her only issue was with the timing of Ms. Bill’s change of position.

[77] The change in position was not orally articulated to me but, I now understand, was intended to be conveyed to me by Ms. Bill’s draft order, which made no mention of a change in decision-making responsibility. It is unfortunate that I missed the nuanced way the change was communicated, but I accept that I did so.

Offers to Settle and Responses

[78] Ms. Samuels submitted that Ms. Bill could have accepted any part of her offer to settle, thereby narrowing the issues for trial. The fact that she did not do so, according to Ms. Samuels, strengthened Mr. MacGougan’s claim for costs.

[79] Even though I do not accept Ms. Samuels’ submission, it is also one that Ms. Bill could have made with respect to her second offer. While it is true that Ms. Bill, in theory, could have accepted any part of Mr. MacGougan’s sole offer, it was unduly complex, burdened by non-severable terms which, in many respects, included issues not pleaded. The offer seemed designed to be rejected. The same comments apply with respect to the second, mirror offer made by Ms. Bill. Thus, I find that neither party was unreasonable in refusing to accept the offers (in the case of Mr. MacGougan) or the offer (in the case of Ms. Bill) of the other.

[80] What the parties ought to have done was review where their positions aligned and presented me with an outline of the terms which they both agreed should be included in the order – whether or not they touched on issues not included in the pleadings. That they did not do so is simply reflective of the uncompromising attitude that both parties allowed to drive their litigation.

Conclusion Regarding Unreasonable Behaviour

[81] Having regard to all these matters, I find that, while there was unreasonable behaviour by both parties, Ms. Bill’s behaviour was more frequently and broadly unreasonable than that of Mr. MacGougan.

Rule 24(12) - Setting Costs Amounts

[82] Under Rule 24(12)(a), when setting costs, I am required to consider “the reasonableness and proportionality” of a number of factors as they “relate to the importance and complexity of the issues”.

[83] The issues before the court were particularly important to both parties. That noted, they were not overly complex, although the involvement of Ms. McHardy, Ms. DeVeto and Ms. Hill did make the determination of an appropriate outcome more difficult.

[84] Accordingly, when assessing the costs factors set out under Rule 24(12)(a), I do so with regard to the issues being important to the parties, and of moderate complexity.

Rule 24(12)(a)(i) - Each Party’s Behaviour

[85] I have already discussed this factor. Ms. Bill’s behaviour was more unreasonable and, therefore, negatively disproportionate to that of Mr. MacGougan.

Rule 24(12)(a)(iii)[^6] - Any Written Offers to Settle, including those not meeting Rule 18

[86] I have, earlier, discussed the parties’ offers to settle.

Rule 24(12)(a)(ii) - Time Spent by Each Party

[87] There is a connection between the time that a lawyer spends on a file and the legal fees both billed to the lawyer’s client and sought, on behalf of a successful party, from the other party. As the Court of Appeal wrote in Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, [2022] O.J. No. 3632:

66 The party seeking costs bears the burden of proving them to be reasonable, fair, and proportionate. The absence of dockets is not an automatic bar to proving or receiving an award of costs: Leonard v. Zychowicz, 2022 ONCA 212, at para. 33. However, absent dockets, a description of the activities for which fees and disbursements are claimed must be sufficient to permit for the kind of close scrutiny that the court is required to undertake. The material provided for the assessment must allow the court to come to a conclusion as to the amount of time reasonably required by the party seeking costs to deal with all aspects of the proceedings for which costs are claimed, including whether there was over-lawyering or unnecessary duplication of legal work: Restoule, at para. 355. (Bolding added)

[88] In my order following the trial, I specifically required that, when submitting costs requests, each party must include “a Bill of Costs[^7] identifying all persons who worked on the matter, their position, the rate being charged for their services, and a complete and clear description of the work undertaken by each person for whom a claim for costs is being made.”

[89] What I received from each of Ms. Samuels, as to her work, and Mr. Skuce, as to his, was a copy of their docket entries. Ms. Samuels also provided copies of the accounts that were rendered by Mr. Parrack, one of her predecessors, to Mr. MacGougan. Their materials each provided me with the information I required by my order.

[90] Both Mr. Skuce and Ms. Samuels appeared to devote similar amounts of time to the preparation for and attendance at trial. Ms. Samuels had been retained only for trial and Mr. Skuce submitted his accounts only in relation to the trial.

[91] Ms. Samuels docketed 96.2 hours. Collectively, she and the members of her firm who worked on the file docketed 119.4 hrs.

[92] Mr. Skuce produced a bill of costs covering the period between March 3, 2023, and the end of trial on April 28, 2023. Over that period, which essentially encompassed preparation for and attendance on the trial, Mr. Skuce docketed 100.1 hours.

[93] Given the similarities in the time records of each of Ms. Samuels and Mr. Skuce, I have no quarrel with the time expended by either in respect of preparation for, and attendance at, trial.

[94] I also have little quarrel with the time that Mr. Parrack devoted to the activities detailed in his invoices to Mr. MacGougan.

[95] The materials filed by Ms. Samuels on behalf of Mr. Ludmer, another lawyer who previously represented Mr. MacGougan, failed to provide me with the information that my order required. The submitted materials consisted of three Costs Outlines, which listed only a notation of Mr. Ludmer’s time and that of members of his staff, their hourly rates, and the mathematical extension of hours multiplied by rate with the resultant fees. There was no description whatsoever of the work undertaken by any of the persons identified in the Ludmer Costs Outlines.

[96] As a result, I am unable to undertake the “close scrutiny” with respect to the information provided on behalf of Mr. Ludmer that the Court of Appeal indicated I must apply in attempting to determine whether the time expended by him and his staff was “reasonably required,” or whether there had been “over-lawyering or unnecessary duplication of legal work.”

[97] Moreover, two of the three Costs Outlines submitted by Mr. Ludmer related to periods of time when activities led to costs orders being made against Mr. MacGougan, about which more will be written when I consider Rule 24(12)(a)(iv), below.

Rule 24(12)(a)(iv) - Legal Fees, including Number of Lawyers and Their Rates

[98] Justice D. Chappel wrote in Arthur v. Arthur, [2019] O.J. No. 3494 (S.C.J.):

29 As a starting point in determining the appropriate quantum of costs, the court has an obligation to review the specifics of the Bill of Costs to assess whether items claimed are properly the subject of a costs award, and if so, to consider the reasonableness of the amounts requested (Donnelly v. Donnelly, 2004 CarswellOnt 2076 (S.C.J.); Snelgrove v. Kelly, 2017 ONSC 4625 (S.C.J.)). The court must as part of this process consider whether all of the items claimed actually relate to the legal step in question, and whether the hours spent can be reasonably justified (Pagnotta v. Brown, [2002] O.J. No. 3033 (S.C.J.); Murphy v. Murphy, 2010 ONSC 7204 (S.C.J.); Jackson; Snelgrove; Beaver). The goal of this exercise is to come up with an amount that the court considers to be a reasonable and proportionate full indemnity amount from which the balance of the quantification analysis can then be carried out. (Bolding added)

Invoices rendered by Mr. Parrack

[99] The invoices from Mr. Parrack covered the period between August 25, 2020, and August 23, 2021.

[100] The legal fees charged to Mr. MacGougan by Mr. Parrack over that period, not including HST, amounted to $5,665.75. That included $1,800.00 for the preparation of a case conference brief, a contempt motion (later withdrawn), a second case conference brief, and the attendance at a case conference. Mr. Parrack’s hourly rate over the period covered by his accounts was $200.00.

[101] There appears to have been only one case conference. The endorsement says nothing about there either having been any submission made as to costs or costs.

[102] Rule 24(10) provides as follows:

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later stage in the case.

[103] This rule has been the subject of comment in several cases. The case most frequently cited is Islam v. Rahman, 2007 ONCA 622, in which, at para. 2, the Court of Appeal confirmed that a trial judge should not make an order for costs in relation to any earlier step where no costs were ordered or where there was silence on the issue.

[104] That decision, however, came before amendments to Rule 24(10) that appear to have been made in 2016, when subclause (b) was added, which allows a court dealing with a step in a case to “expressly reserve” the decision on costs for a later stage in the case.

[105] However, as Justice I. Leach wrote in Wilson v. Jurewicz, [2020] O.J. No. 4405:

14(e)(iii) …Although…sub-rule [24.10] also confirms the ability of the court to expressly reserve a decision on costs for determination at a later stage in the case, the "wait and see what happens at trial" approach advocated by the Applicant clearly is not the general practice of our court.

[106] Closely tied to the amendment to Rule 24(10) was an amendment to Rule 24(11), enacted in 2018, which now provides that:

(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case.

[107] Clearly, based upon Rule 24(11), the fact that the Justice presiding at the case conference attended by Mr. Parrack in this matter does not preclude me from awarding costs for the case conference to Mr. MacGougan if I feel such an order to be appropriate.

[108] There is case law, however, which suggests that doing so would not be the best course of action[^8], and if such costs are sought, there is a procedure to be followed,[^9] which was not followed in this case.

[109] As a result, I exclude from my costs consideration the amount of $300.00 charged by Mr. Parrack with respect to the case conference in which he represented Mr. MacGougan.

[110] While I was initially inclined to also exclude from my consideration the cost of Mr. Parrack’s preparation of the case conference brief, it appears that the provisions of Rule 24(10) do not apply to out-of-court preparation.[^10]

[111] I also exclude, however, the sum of $600.00 invoiced by Mr. Parrack to Mr. MacGougan for work undertaken in respect of a contempt motion brought by Mr. MacGougan against Ms. Bill. That contempt motion was later withdrawn, on consent, with no costs to be payable by Mr. MacGougan to Ms. Bill.

[112] Since Ms. Bill was presumptively entitled to the costs of the withdrawn motion, and she agreed to forego them, it is inappropriate, in my view, for Mr. MacGougan to now claim, after trial, those costs in respect of a matter in which, under the Rules, he was clearly the unsuccessful party.

[113] Accordingly, I am reducing by $900.00 the costs claimed by Ms. Samuels on behalf of Mr. MacGougan for work undertaken by Mr. Parrack. That amount, therefore, not inclusive of HST, will be reduced to $4,765.75 for the purposes of my consideration of a final costs award.

Costs Outlines of Mr. Ludmer

[114] As I have noted, Mr. Ludmer provided three Costs Outlines. All three were deficient for the reasons earlier described.

Costs Outline #1

[115] Mr. Ludmer became counsel of record for Mr. MacGougan on December 6, 2021.

[116] Costs Outline #1 was said to consist of “Total Time Spent and Fees Re: 14B Motion.” It encompassed work completed between December 4, 2021, and January 10, 2022.

[117] The amount claimed for fees for the otherwise unknown work undertaken by Brian Ludmer, Kyle Ludmer, and a paralegal amounted to $4,425.00, not including HST.

[118] I have reviewed the entire electronic court record, which would have been the only record in place after March 15, 2020, which was before Mr. Ludmer became counsel of record. I could find no reference to a Form 14B motion in the period between December 4, 2021, and January 10, 2022.

[119] I did, however, find an endorsement dated January 7, 2022, when Kyle Ludmer appeared, together with Mr. Skuce, before Justice Korpan, who adjourned the proceeding to allow for Mr. Skuce to bring a motion which was to be returnable January 21, 2022.

[120] On January 21, 2022, the matter before the court - presumably, Mr. Skuce’s motion - was adjourned by Justice Aston to March 18, 2022, for a two-hour motion.

[121] On March 18, 2020, Justice Tobin heard a motion regarding an expansion of Mr. MacGougan’s parenting time. That motion will be addressed in the next section.

Costs Outline #2

[122] Costs Outline #2 was said to be in relation to “Motions heard March 18, 2022,” with the work encompassed by the Outline having been completed between January 11, 2022, and March 19, 2022.

[123] The amount claimed for fees for the otherwise unknown work undertaken by Brian Ludmer, Kyle Ludmer, a paralegal and four legal assistants amounted to $16,952.00, not including HST.

[124] In a factum filed by Mr. Skuce for this appearance, he wrote that,

“[i]n January 2022 there was an agreement by the parties to expand [Mr. MacGougan’s] parenting time beyond the limited parenting time set out in the without prejudice order [of Justice Campbell] dated August 12, 2021, and in accordance with the recommendations from the OCL report. [Ms. Bill’s] counsel sought to confirm the expanded and agreed-upon parenting time in a second without prejudice consent order. [Mr. MacGougan’s] counsel rejected the request… Counsel for [Ms. Bill] brought her motion herein to identify the expansion of parenting time agreed upon between the parties.”

[125] Mr. Ludmer brought a cross-motion on behalf of Mr. MacGougan seeking a different parenting time order. He also filed a factum, but it made no reference to any purported or aborted agreement between the parties prior to the cross-motions.

[126] Those motions resulted in an order by Justice Tobin which supported Ms. Bill’s position on a change to the interim parenting arrangement. After receiving written costs submissions, on October 11, 2022, Justice Tobin ordered Mr. MacGougan to pay costs of $6,500.00 to Ms. Bill in respect of the motions heard March 18, 2022. Mr. MacGougan, then self-represented and relying on a Bill of Costs from Mr. Ludmer, had sought “Total Partial Indemnity Costs” of $10,030.33, which is close to the all-inclusive “Total Partial Indemnity” amount of $11,493.45 that Mr. Ludmer has provided to Ms. Samuels to claim on behalf of Mr. MacGougan for the motions of March 18, 2022.

[127] I find, based on Mr. Skuce’s assertions in his factum, that the first of Mr. Ludmer’s Costs Outlines must have related to what was intended to be a consent, without prejudice order expanding Mr. MacGougan’s parenting time that did not come to fruition, resulting in the two motions heard by Justice Tobin on March 18, 2022.

[128] I conclude, therefore, that the work undertaken by Mr. Ludmer and staff in relation to the aborted Form 14B motion referred to in Costs Outline #1 ultimately rolled into and became subsumed in Mr. MacGougan’s unsuccessful motion before Justice Tobin.

[129] As a result, I conclude that the fees listed in the first and second of Mr. Ludmer’s Costs Outlines in the amount of $21,377.00 ($24,156.01[^11], including HST), were entirely related to the ultimately unsuccessful effort by Mr. MacGougan to rapidly expand his interim parenting time pending trial.

[130] Surely, if Justice Tobin awarded the costs of the March 2022 motions to Ms. Bill, it is not now open to Mr. MacGougan, as the unsuccessful party on those motions, to seek to recover those costs, or earlier costs for a consent order that never materialized, at the end of trial.

[131] Therefore, I decline to include in Mr. MacGougan’s claim for costs any of the amounts that were billed by Mr. Ludmer for the undefined work undertaken on Mr. MacGougan’s behalf in the first and second of Mr. Ludmer’s Costs Outlines.

[132] I am, therefore, deducting from the amount claimed for costs by Ms. Samuels on behalf of Mr. MacGougan for the work done by Mr. Ludmer’s firm, as shown on Costs Outlines #1 and #2, the sum of $24,156.01, including HST.

Costs Outline #3

[133] Costs Outline #3 was said to be in relation to “Work completed March 19, 2022, to September 9, 2022.” During that period, Mr. Ludmer was counsel of record for Mr. MacGougan between March 19, 2022, and July 7, 2022, and again between September 5, 2022, and September 9, 2022.

[134] The amount claimed for fees for the otherwise unknown work undertaken by Brian Ludmer, Kyle Ludmer, a paralegal and four legal assistants amounted to $18,457.00, not including HST.

[135] In the period between March 19, 2022, and September 9, 2022, two noteworthy events occurred.

[136] The first was a settlement conference before Justice Aston on June 15, 2022.

[137] In his endorsement, Justice Aston referred to a Form 14B motion that was pending before Justice Tobin. He noted that “Justice Tobin’s determination” of that motion “on June 27, 2022, will have a significant bearing on the parties’ positions and the next steps in the case.”

[138] Justice Aston noted that the parties did, however, discuss “certain peripheral issues that are independent of the matter still before Justice Tobin” at the settlement conference. He made some orders on consent and adjourned the proceeding to July 29, 2022, to be spoken to, for the purpose of either setting a further settlement conference date or having the matter move forward to trial.

[139] Justice Aston made no endorsement about costs.

[140] Each of the parties filed settlement conference briefs for the appearance before Justice Aston on June 15, 2022. Mr. MacGougan’s brief, authored by Mr. Ludmer, was fourteen pages in length. Ms. Bill’s brief, authored by Mr. Skuce, was seven pages.

[141] In light of the Divisional Court’s ruling in Houston v. Houston, above, and despite the absence of a costs endorsement by Justice Aston, given that I have found Mr. MacGougan to be the successful party, I will include in the amount claimed for costs in the period covered by Mr. Ludmer’s Costs Outline #3 the sum of $1,500.00, inclusive of HST, for the work undertaken by the Ludmer law firm in preparing for the settlement conference before Justice Aston.

[142] The second significant event that occurred during the period covered by Mr. Ludmer’s Costs Outline #3 was the Form 14B motion before Justice Tobin that Justice Aston mentioned in his endorsement of June 15, 2022.

[143] That Form 14B motion, initiated by Mr. Ludmer, came about because Mr. Ludmer, on behalf of Mr. MacGougan, disputed the formal order prepared by Mr. Skuce as a result of Justice Tobin’s decision in connection with the motions heard by him on March 18, 2022. Mr. Ludmer also raised some other procedural issues.

[144] The Form 14B motion was heard by Justice Tobin on September 9, 2022. The issues before him were whether the court should reopen the issues addressed in the motions heard by him on March 18, 2022, and whether the order should be changed to include matters which were before the court on March 18, 2022, but which had not been decided.

[145] Justice Tobin determined that the original motions should not be reopened, but that the order might be changed to include matters not previously decided. After considering those matters, he concluded that the relief sought by Mr. MacGougan should either not be included in the order or be deferred for consideration by the trial judge.

[146] The issues deferred for consideration by the trial judge were whether Ms. Bill should reimburse Mr. MacGougan for 50% of the costs associated with the written report prepared by Paula DeVeto for the motions heard March 18, 2022, and whether the parties should be required to continue working with Ms. DeVeto and sharing the costs thereof equally.

[147] When setting the costs of the Form 14B motion, Justice Tobin ordered Mr. MacGougan to pay Ms. Bill’s costs in the amount of $300.00, all inclusive.

[148] I note that, between Brian Ludmer and Kyle Ludmer, over the period covered by Costs Outline #3, they claimed to have devoted nearly $18,000 in legal fees to what, ultimately, appears to have amounted to a settlement conference and an unsuccessful motion. In my view, those fees are clearly excessive, particularly since I was offered no information about the work that went into generating such an amount.

[149] As for the matters from the Form 14B motion reserved to the trial judge, I did order that the parties “continue the process, together with C2, of family reconciliation therapy with Paula DeVeto or such other therapist, not including Jenna Hill, as she recommends.”

[150] In that regard, I find that Mr. MacGougan’s position on the Form 14B motion before Justice Tobin was upheld. As a result, some costs of this issue argued before Justice Tobin should be included in the amount that I find to be now properly claimed by Mr. MacGougan. In the absence of specifics from Mr. Ludmer, but noting that Mr. MacGougan had requested costs of $12,000.00, which included the earlier claimed $11,493.45 for the motions of March 23, 2022, leaving claimed costs for September 9, 2022, in the amount of $506.55, I am setting costs in favour of Mr. MacGougan for this portion of the Form 14B motion in the amount of $500.00 plus HST of $65.00.

[151] As for the other issue reserved for trial - whether Ms. Bill should reimburse Mr. MacGougan for 50% of the costs associated with the written report prepared by Paula DeVeto for the motions heard March 18, 2022 – in my Reasons for Judgment I made no order as to this matter, noting specifically that I had “received no evidence about amounts [which were] said to be owed by either party to Paula DeVeto” and that “no claim [had] been made in that regard.”

[152] I now understand, from reviewing Justice Tobin’s endorsement dated September 15, 2022, that the issue was whether the report prepared by Ms. DeVeto for the motion of March 18, 2022, exceeded the terms of her engagement, which was noted as being the basis of Ms. Bill’s refusal to pay anything toward the cost of preparing the report. As Justice Tobin noted at paragraph 47 of his endorsement (MacGougan v. Bill, 2022 ONSC 5208), “the determination of [Mr. MacGougan’s] request for reimbursement from [Ms. Bill] requires a determination of whether [Ms. DeVeto’s] report provided was within the scope of [her] engagement.” Justice Tobin noted that, on the motion he was not able to determine that issue.

[153] No evidence was called on this issue at trial so I find myself in the same position as Justice Tobin when he wrote that “a finding in favour of either party on this issue on the record before this court would be made without a full canvas of the report and hearing from Ms. DeVeto.” While I heard from Ms. DeVeto, I was provided with no evidence, and no submissions were made, about whether her report from March 2022 exceeded her mandate. Paragraph 26 of my order stands.

[154] Consequently, I decline to order any costs now in favour of Mr. MacGougan in connection with this issue when it was before Justice Tobin on September 9, 2022, as I also decline to order Ms. Bill to pay one half of Ms. DeVeto’s account for the preparation of her report.

[155] In the result, I will add into the amount being claimed on behalf of Mr. MacGougan by Ms. Samuels the sum of $1,500.00, all inclusive, for work undertaken by the Ludmer law firm in connection with the settlement conference before Justice Aston and $565.00, all inclusive, in connection with the motion before Justice Tobin relating to the parties’ re-attendance for counselling with Ms. DeVeto.

[156] I am, therefore, deducting from the amount claimed for costs by Ms. Samuels on behalf of Mr. MacGougan for the work done by Mr. Ludmer’s firm as shown on Costs Outlines #3 the sum of $19,091.39, including HST.

Amount Claimed by Ms. Samuels and members of her firm

[157] Ms. Samuels, who has 11 years of experience, charged her time at $300.00 per hour, as did Mr. Skuce, who has 32 years’ experience.

[158] I have no quarrel with the overall amount that Ms. Samuels’ time at her hourly rate produced - $28,860.00, net of HST, for the period between December 12, 2022, and the end of trial. For comparison, Mr. Skuce’s docketed fees over the period March 3, 2023 to the end of trial amounted to $30,100.00, not including HST.

[159] Ms. Samuels’ time dockets, at her hourly rate of $300.00 and those of her three clerks, resulted in a claim for costs for the work undertaken by her firm in the amount of $31,301.00, net of HST, or $35,370.13 including HST.

[160] My only quarrel with Ms. Samuels’ claim for costs relates to an amount which she charged out for certain work at an “administrative rate,” which seems to be secretarial in nature, and which is not recoverable as costs. The amount, however, is relatively small, so its deduction will not affect the overall amount of costs that I set.

[161] In the result, I find that the “amount that [I] consider to be a reasonable and proportionate full indemnity amount” for the services undertaken by the legal counsel who have represented Mr. MacGougan over the course of this proceeding, based on proper information from which I can reasonably deduce appropriate expenditures of time, “from which the balance of the quantification analysis can then be carried out,” amounts to $42,820.43.

Rule 24(12)(a)(v) – Any Expert Witness Fees, including the Number of Experts and Their Rates

[162] Ms. DeVeto was the only qualified expert witness at trial. Ms. Samuels produced two invoices from her. One related to the report prepared in connection with the motion of March 18, 2022. Ms. Samuels now claims $1,875.00, representing 50% of the costs deferred to me as trial judge by Justice Tobin and about which I was told nothing at trial. That amount will not be included in the overall costs I determine to be claimed by Mr. MacGougan, in accordance with my order at trial.

[163] The second amount claimed relates to Ms. DeVeto’s preparation for and attendance at trial. The total amount of the bill, which includes two full days plus one-half day of evidence plus preparation therefor, at a rate of $250.00 per hour for all services, amounted to $4,025.00. I have no quarrel with the amount of Ms. DeVeto’s invoice. Ms. Samuels seeks 50% of the cost, plus HST. Ms. DeVeto’s account does not include HST. I will allow Ms. Samuels $2,012.50 for 50% of Ms. DeVeto’s account, without HST.

[164] Lastly, an invoice was produced in the amount to $2,325.00 for testimony by Jenna Hill. Ms. Hill was not qualified as an expert witness. She prepared a report which was filed with the court in heavily redacted form for the reasons noted in my trial Judgment.

[165] Her invoice notes that she testified on April 13, 2023, for 3.5 hours at $150.00 per hour. She also seeks to be reimbursed for “trial standby” time of 5 hours on April 12, 2023, and 7 hours on April 24, 2023.

[166] Mr. Skuce notes in his submissions that he elected not to question Ms. Hill given the redactions in her final report.

[167] I am prepared to include $975.00 plus HST as the amount claimed by Ms. Samuels for disbursements in favour of Ms. Hill, which includes $525.00 for the time that she did testify plus standby for trial on April 13, plus $450.00 for preparation time.

[168] Ms. Samuels sought 50% of Ms. Hill’s costs as billed. Because of the amount that I have determined to be properly claimable for Ms. Hill is less than 50% of her account, I will include the full amount that I have allowed to be included in Ms. Samuels’ claim for costs.

Rule 24(12)(a)(vi) - Other Expenses Properly Paid or Payable

[169] The other expenses claimed by Ms. Samuels amounted to $15.00 for printing net of HST. That amount is clearly reasonable.

Rule 24(12)(b) - Any other Relevant Matter

[170] Under this heading, I return to the costs of certain interim motions. In her submissions, Ms. Samuels asked that I consider awarding costs with respect to three matters:

a. An order made by Justice Campbell, on consent, on August 2, 2021

This matter, a motion by Ms. Bill, was settled. Mr. MacGougan was represented by Mr. Parrack. The order contained no provision with respect to costs. Mr. Parrack appears to have included $380.00 plus HST, as time he devoted to the settled motion in the invoices which Ms. Samuels submitted in support of Mr. MacGougan’s claim for costs. That amount, totaling $429.40, inclusive of HST, will be further deducted from the amount being claimed on behalf of Mr. MacGougan for services rendered on his behalf by Mr. Parrack.

b. A motion heard by Justice McArthur on October 21, 2022

I decline to order costs in respect of this three-part motion for two reasons. First, it appears that Mr. MacGougan’s requests were denied by Justice MacArthur. Second, Mr. MacGougan was self-represented. In her submissions, Ms. Samuels wrote that Mr. MacGougan’s costs proposal “does not quantify the time spent as an unrepresented litigant.” In the absence of any such information, I cannot quantify costs, even if I were inclined to do so.

c. An order that I made on October 28, 2022

Mr. MacGougan, who was still self-represented, sought to amend his Response to Motion to Chage. Ms. Bill consented, so long as no claim was made with respect to parenting time for C1, a submission with which I agreed. Thus, the order made was, in effect, on consent. No order as to costs is made as to this matter.

Total Adjusted Full Reimbursement Claim by Ms. Samuels

[171] Considering the adjustments I have discussed, I find that the amount which would represent full reimbursement for Mr. MacGougan, as claimed by Ms. Samuels on behalf of all of Mr. MacGougan’s counsel, should be $42,391.03, inclusive of HST, plus $3,114.25, inclusive of HST, where applicable, for disbursements owing for Ms. Hill and Ms. DeVeto, for an overall total of $45,505.28.

Law

[172] The law with respect to the setting of costs is well-established. It is contained in several Court of Appeal decisions including:

Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412 (C.A.)

12 As the wording of [Rule 24(12)] makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

19 What is most important, however, is that the motion judge did not consider the principle of proportionality. Proportionality is a core principle that not only governs the conduct of proceedings generally, but is specifically applicable to fixing costs in family law matters, as I have set out above.

21 There is a final factor to which the motion judge appears to have given only passing consideration: the respondent's motion that sought a wide variety of relief, almost all of which she was unsuccessful in obtaining and which greatly extended the hearing time. The motion judge did not make any adjustment to the costs award arising from this element of divided success.

Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, [2022] O.J. No. 3632 (C.A.)

60 A proper costs assessment requires a court to undertake a critical examination of the relevant factors as applied to the costs claimed and then "step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable": Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 2, at para. 356, citing Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 24. However, as this court recently reiterated in Restoule, at para. 357, referencing Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 163 D.L.R. (4th) 21 (Ont. C.A.), at para. 100, "this overall sense of what is reasonable 'cannot be a properly informed one before the parts are critically examined.'" (Bolding added)

61 The overarching objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant: Boucher, at para. 26.

62 While the reasonable expectation of the parties concerning the amount of a costs award is a relevant factor that informs the determination of what is fair and reasonable, it is not the only, determinative factor and cannot be allowed to overwhelm the analysis of what is objectively reasonable in the circumstances of the case. To hold otherwise would result in the means of the parties artificially inflating costs with the concomitant chilling effect on access to justice for less wealthy parties. As this court cautioned in Boucher, at para. 37:

The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.

64 … Again, the question is, as Boucher instructs, whether the costs are reasonable, fair, and proportionate for the losing party to pay in the particular circumstances of the case or whether the magnitude of the costs "generally exceeds any fair and reasonable expectation of the parties".

65 Costs that are reasonable, fair, and proportionate for a party to pay in the circumstances of the case should reflect what is reasonably predictable and warranted for the type of activity undertaken in the circumstances of the case, rather than the amount of time that a party's lawyer is willing or permitted to expend. The party required to pay the successful party's costs "must not be faced with an award that does not reasonably reflect the amount of time and effort that was warranted by the proceedings": Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission (2003), 2003 8279 (ON SCDC), 170 O.A.C. 388 (Div. Ct.), at para. 17.

Conclusion

[173] While Mr. MacGougan was the overall successful party, his success came with some offsetting successes by Ms. Bill, who I have also found to be the party who have behaved more unreasonably. Having regard to those findings, and to what I have determined to be Ms. Samuels’ total adjusted full reimbursement claim for costs on behalf of Mr. MacGougan, I have also “stepped back and considered the result produced.”

[174] As a result, I have concluded that the fair and reasonable amount that Ms. Bill ought to pay to Mr. MacGougan as costs in this matter is $27,000.00, all inclusive. My order reflects my conclusion.

Justice T. Price

Date: December 4, 2023

[^1]: Jackson v. Mayerle (2016), 2016 ONSC 1556, 130 O.R. (3d) 683 at para. 19 (S.C.J.)

[^2]: Scipione v. Del Sordo, 2015 ONSC 5982, [2015] O.J. No. 5130 at para. 18 (S.C.J.)

[^3]: Wylie v. Leclair, 2003 49737 (ON CA), [2003] O.J. No 1938, at para. 24 (C.A.)

[^4]: Arthur v. Arthur, [2019] O.J. No. 3494 at para. 14 (S.C.J.)

[^5]: I had included C1 in this issue because Justice Campbell’s order had not included a dispute resolution mechanism.

[^6]: I am rearranging the order in which I consider the factors listed in Rule 24(12(a) because, in my view, those set out in Rules 24(12)(a)(ii) and 24(12)(a)(iv) are closely related. As a result, I will be referring to Rule 24(12)(a)(iii) before Rules 24(12)(a)(ii) and 24(12)(a)(iv.)

[^7]: Mudronja v. Mudronja, [2022] O.J. No. 5575 at para. 21 (S.C.J.)

[^8]: N.N.S. v. J.A.O.V., [2018] O.J. No. 3943

[^9]: Cameron v. Cameron, 2018 ONSC 6823, [2018] O.J. No. 6009, in which Justice Kurz held that there is an “onus” on a party seeking previously undetermined and unreserved costs of a previous step. No justification for seeking those costs in respect of certain of the work undertaken by Mr. Parrack has been offered.

[^10]: Houston v. Houston, [2012] O.J. No. 75 (Div. Ct.)

[^11]: The total amount shown on Mr. Ludmer’s Costs Outline #2 (Fees + HST) was erroneous, being off by $7.97.