Court File and Parties

COURT FILE NO.: FC-22-57 DATE: 2024/03/06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gareth Newfield, Applicant AND: Ashley Dawn-Alexandria McKee, Respondent

BEFORE: Somji J.

COUNSEL: Daniel Robertson for the Applicant Alaina Woolfrey for the Respondent

HEARD: In writing

Costs Endorsement

[1] The Respondent mother seeks full indemnity costs in the amount of $9,297 following the Applicant father’s motion for parenting time during the Christmas holiday season and authorization to travel during his parenting time. The motion commenced before me on November 28, 2023. The travel issues were adjourned for continuation, but the issue of the Christmas holiday parenting schedule (“holiday schedule”) was directed to a settlement conference before Shelston J where it was resolved.

[2] The father takes the position that there is a presumption against liability for costs where a matter is settled at a conference, and in this case, the issue of the holiday schedule was resolved on consent of the parties at the settlement conference. Consequently, the father argues that costs should not be awarded to either party. Alternatively, if costs are ordered they should be awarded against the mother for her unreasonable conduct. If such a finding were made, the father seeks substantial indemnity costs in the amount of $5,158.38.

[3] The issues to be decided are whether any party is entitled to costs, and if so, what costs award would be fair and reasonable?

Issue 1: Is either party entitled to costs?

[4] 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.

[5] Rule 24 sets out the legal framework for cost orders in family cases: Family Law Rules, O. Reg. 114/99 as am.; Mattina v Mattina, 2018 ONCA 867 at para 9.

[6] 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) Family Law Rules (“FLR”), O. Reg. 114/99 as am, that cases are dealt with justly: Mattina at para 10.

[7] The starting point is that the successful party is presumptively entitled to costs: r. 24(1).

[8] In assessing entitlement, judges must consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct on the part of a successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8) FLR.

[9] Similarly, in assessing quantum, judges are to consider as per r. 24(12) FLR: the conduct of the parties; the time spent by each party; written offers to settle, legal fees charged and counsels’ rates, expert and witness fees, disbursements and other expenses; and any other relevant matter: r. 24(12) FLR.

Relevant facts

[10] Before addressing these factors, it is necessary to briefly set out the facts leading to this motion. The parties cohabited for a period and had one child, presently age 6. The relationship terminated in February 2021. Parenting litigation has been ongoing since March 2021.

[11] On April 20, 2023, Minnema J made a temporary order on consent of the parties governing school and other holiday parenting time. The order set out a holiday schedule which provided the parents each with an equal number of days with the child but for short blocks of time over the holiday season. The holiday schedule alternated each year so each parent could experience Christmas and New Year with the child in odd or even years.

[12] In late September 2023, the father brought a motion seeking an order: (1) that neither party unreasonably withhold consent for the other parent to travel with the child; (2) that the parties permit the child to travel and attend family events within Ontario and that 14 days notice be provided for such travel; (3) and that the 2023-2024 winter holiday schedule be amended to provide the mother parenting time from December 23 to 30, 2023, and the father with parenting time from December 31, 2023, to January 8, 2024.

[13] Although the father had consented to Minnema J’s order setting out the holiday schedule just five months earlier, the father requested a change because the manner in which the days were distributed in the interim did not provide him sufficient time to travel with the child to Toronto to visit family.

[14] It is important to note that at the time the father brought the motion, the parties had just completed another hearing in July 2023 before MacEachern J on parenting issues including travel during parenting time had been addressed. That decision was pending. The specific schedule for the 2023-2024 holiday season was not before her.

[15] The mother opposed the motion on the basis that there was no material change in circumstances as a result of which there were cogent and compelling reasons to vary the interim order in the child’s best interests. The mother’s counsel indicated in a letter to the father’s counsel of October 11, 2023 that it would oppose a motion requesting change to the interim order and seek costs.

[16] Following the start of the motion on November 28, 2023, the parties proceeded, upon my recommendation, to a without prejudice settlement conference to settle the sole issue of holiday scheduled, following which Shelston J ordered on consent of the parties that:

a) In odd years, the child shall reside with the mother from December 23 at 9:00 a.m. to December 25 at 1:00 p.m., and with the father from December 25 at 1:00 p.m. to December 26 at 1:00 p.m.

b) The regular schedule shall apply from December 26 at 1:00 p.m. until December 31 at 9:00 a.m.

c) the child shall reside with the father from December 31 at 9:00 a.m. until January 5th at 5:00 p.m. The regular schedule shall resume on January 5 at 5:00 p.m.

The issue of costs shall be determined by the motion judge Somji.

Offers to settle

[17] On November 22, 2023, the mother made an offer that was severable in parts to which the father did not respond. I find the mother’s offer of November 22, 2023, as it relates to the holiday schedule was as, if not more, favourable than what the parties ultimately agreed to and as set out in Shelston J’s Order. In fact, the terms of Shelston J’s Order constituted a verbatim adoption of paragraphs 7 to 9 of the mother’s settlement offer. The only portion that does not appear to have been adopted and which Shelston J’s Order is silent on is how holiday time would be addressed in even years. The father did not accept the mother’s offer. The offer complied with the conditions of r. 18(4) warranting full recovery costs from the date the offer was served.

[18] I disagree with the father’s argument that as per r. 24(5), the father’s offer was reasonable. First, while the father did make an offer to settle on November 21, 2023, it did not contain any compromise position but rather was a reiteration of the entirety of his requests in the Notice of Motion. Second, the father’s proposal would have resulted in the mother having eight consecutive days and the father having nine consecutive days over holiday period. Third, the father’s proposal was not seeking to simply seeking to modify the interim holiday schedule so that he could obtain the necessary days to permit him travel with the child to see family, but also seeking a generic term requiring the parties not to unreasonably withhold consent to travel with the child. This proposed clause did not appear to give no consideration to whether that travel would encroach on the other parent’s time with the child. As the mother fairly pointed out in her affidavit dated November 22, 2023, she has no issue with the father travelling with the child, so long as he does not do it during the mother’s parenting time. Finally, the issues of the father’s travel during parenting time had just recently been argued before MacEachern J whose decision was under reserve, and therefore, a portion of the father’s motion was duplicative.

Conduct of the parties

[19] The court may issue an elevated costs award over and above partial indemnity where one party’s conduct has been unreasonable. Unreasonable conduct includes conduct that is: 1) disrespectful of other participants or the court; 2) unduly complicates the litigation; or 3) increases the costs of litigation: Harper v Smith, 2021 ONSC 3420, at para 3, citing Beaver v Hill, 2018 ONSC 3352 (“Beaver v Hill (ONSC)”), at para 51, rev’d on other grounds, 2018 ONCA 840. Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award: Ali Hassan v Abdullah, 2023 ONCJ 186, at para 61; Beaver v Hill (ONSC), at para 51.

[20] If a party’s conduct reaches the high threshold of bad faith, it can warrant a costs award on a full recovery basis payable forthwith: r. 24(8).

[21] The mother argues the father has engaged in unreasonable conduct with his lack of cooperation and repeated motion requests since the parties separation resulting in unnecessary litigation costs and burdening her financially. At the time of the November 28th motion hearing, the mother had already dealt with two motions brought by the father, one for urgency in March 2021 and another in July 2023 on parenting. The mother also incurred costs to bring a motion for enforcement of child support following which the week before the motion hearing, the father agreed to pay child support and s. 7 expenses. This was the third motion she was responding to and on issues that had been partially raised in July 2023.

[22] Second, the mother attests that not only did the parents have an agreement on the holiday entered into earlier that year, but this was also the fifth time during 2023 that the father had unilaterally booked travel during the mother’s parenting time and then threatened to bring court action if she did not acquiesce to changes. In other words, this was not the first instance in which the father had sought to amend the parenting schedule because it did not work with his travel plans. Notwithstanding this repeated pattern of behaviour, the mother did make a proposal to the father to allow him travel time over Christmas, but received no response to her offer. The mother also offered to extend the father’s regular two day weekends into four day weekends to provide the father other opportunities for travel, but the father did not accept any of this additional time.

[23] Third, I disagree with the father’s counsel that the motion was necessary because the mother engaged in unreasonable conduct taking advantage of what the father describes as a defective interim order. The father agreed to Minnema J’s interim order with the benefit of legal advice. If upon further reflection he was dissatisfied that the distribution of days over the holiday season did not permit him sufficient time to travel with the child, it was up to him to propose a specific adjustment for 2023 until such time as the matter could be addressed in a Final Order following trial. Repeated requests for interim orders can have significant financial impacts on parties and, once obtained, should not be interfered with lightly. Where an interim order has been issued, there is a presumption in favour of the status quo absent compelling reasons to change the status quo: Miranda v Miranda, 2013 ONSC 4704 at par 26. MacEachern J explains the rationale in Walace v Walace, 2022 ONSC 5734:

“The primary purpose of an interim support order is to make reasonably adequate provisions pending trial. Motions to vary interim support orders are not encouraged. Parties should instead focus on moving the matter to trial, where the issues may be finally adjudicated on a full evidentiary record. The court does, however, have jurisdiction to order an interim variation of an interim order where there has been a substantial change in circumstances since the first interim order, such that it is necessary that a change be permitted prior to trial.

[24] The father pleads that he did attempt to address the shortcomings of the interim order to obtain more time for the 2023 holiday season via Our Family Wizard before resorting to a motion. However, no evidence was filed to support this claim.

[25] For all these reasons, I find the father engaged in unreasonable conduct that warrants an elevated costs award. This is in addition to full recovery costs for that portion of work completed after the mother’s November 22, 2023 offer.

[26] Finally, the fact that a motion settled, or in this case, a portion of a motion, does not disentitle a party costs. If an opposing party makes a good litigation choice by signing Minutes of settlement, that decision to resolve does not wipe out the history of poor litigation choices that would otherwise justify costs: Scipione v Scipione at 2015 ONSC 5982 at paras 64 (f).

[27] Costs should follow each step in a proceeding. Upon reviewing MacEachern’s J’s decision, the parties are scheduled to return before me in the spring of 2024 to address the two remaining issues from the November 28th motion. This does not mean, however, that the mother is not entitled to costs with respect to the settlement of the holiday schedule issue.

[28] In arriving at this decision, I have considered rr. 17(18) and 17(18.1) FLR. Rule 17(18) creates a presumption against liability for costs respecting a conference, unless the party against whom costs is requested was not prepared, did not serve the required documents, did not make any required disclosure, or otherwise contributed to the conference being unproductive. While I agree that neither party engaged in the conduct described in r. 17(8) and the conference was productive in yielding a settlement, I find that for the reasons discussed above, the presumption against liability must give way to the other relevant cost consideration related to the father’s conduct and the settlement offers made such that the mother is entitled to costs. I also note that Shelston J’s Order contemplated that costs would be addressed for proceedings involving adjudication of the holiday schedule.

Other factors

[29] The matter was not complex.

[30] Upon review of the bill of costs, I find the expenses claimed by the mother’s counsel are reasonable and proportionate having regard for the time needed to schedule, prepare, and settle the issues on the motion. The mother’s counsel is a three year call and charged $255/hour but collaborated with senior counsel with 12 years experience charging $335/hr. Total hours spent was approximately 32 hours. In contrast, the father’s counsel charged $350/hour for approximately 20 hours of work for a total of $7,881.75. I find the total hours spent by the mothers’ counsel is reasonable and commensurate with the work performed by each counsel and the rates charged.

[31] Having said this, I must keep in mind that the motion addressed three issues, and this costs decision only addresses the issue of the holiday schedule that settled. The costs for the remaining issues related to travel to be determined if and when those issues are adjudicated. The mother’s bill of costs does not delineate what proportion of the total billings can be fairly attributable to preparation on the issue of the holiday schedule nor does it delineate what work was done after the mother’s November 22, 2023 offer following which the mother would be entitled to full recovery costs as per r. 18(14). In these circumstances, the court must fairly allocate a percentage of the costs to the issue disposed of: A.A. v. Z.G., 2020 ONCA 192 at para 28. Given the other two issues related to the father’s travel with the child are intertwined and that there was some pressure to address the holiday schedule on November 28th with Christmas just around the corner, I find it is fair and reasonable to apportion 40% of the bill of costs for the issue of the holiday schedule.

[32] 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), 71 O.R. (3d) 291 (C.A.), at para 26.

[33] Having considered that the mother was the successful party on the issue of the holiday schedule, that there was a settlement on this single issue, that this was one of three issues prepared for and reflected in the bill of costs, the father’s unreasonable conduct, the settlement offers including r. 18(14), complexity, the billings and rates, I find that a costs award in the fixed amount of $3200 payable to the mother is fair and reasonable.

Order

[34] The Respondent will pay the Applicant fixed costs in the amount of $3200 forthwith.

Somji J. Date: March 6, 2024