Court File and Parties

COURT FILE NO.: FS-16-5611-01 DATE: 2024-07-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Erinn Lindsay Catherine Gravelle, Applicant K. Seeley, for the Applicant

• and -

Peter Joseph Welch, Respondent U. Patola, for the Respondent

HEARD: In writing.

Mr. Justice S.J. Wojciechowski

Reasons On Costs

Introduction

[1] The Respondent, Peter Joseph Welch, brought a Motion requesting the court to consider the parenting schedule for the parties’ two children – August Gravelle-Welch (“August”) and Huxley Gravelle-Welch (“Huxley”), (collectively “the Children”).

[2] The Applicant, Erinn Lindsay Catherine Gravelle, and the Respondent were married in January 2012 and were divorced in May 2018. As a result of their marriage, the Children were born, and following their divorce a schedule for parenting was agreed upon as reflected in the order of Justice Platana dated December 15, 2017.

[3] The original parenting schedule provided, amongst other things, parenting time such that the Applicant and the Respondent each spent alternating weeks with the Children.

[4] Due to issues which arose in the fall of 2023, which included the Respondent’s mental health concerns and his decision to withhold Huxley from attending school, the Applicant sought an order which temporarily suspended the Respondent’s parenting time, and which was granted by Justice Warkentin’s Order dated November 2, 2023.

[5] Following efforts to address his mental health issues through hospitalization and subsequent treatment, and his acknowledgement that removing Huxley from school was wrong, the Respondent brought a motion to reinstate the previous parenting time schedule, which was heard on April 4, 2024.

[6] My decision of May 8, 2024, granted a temporary order reinstating the alternating week scheduled for parenting time, and provided a parenting schedule for the months of July and August 2024.

[7] The Respondent now seeks his costs of the Motion.

Background Facts

[8] The final Order of Platana J. dated December 15, 2017, awarded the Respondent and the Applicant joint custody of the Children. Justice Platana also ordered that the Children be registered in and attend Pope John Paul II School and St. Thomas Aquinas High School in Kenora unless both the Applicant and the Respondent agreed in writing, or a Court ordered otherwise. In addition, the Children were to reside equally with the Respondent and the Applicant pursuant to a week about schedule except during the summer school holidays, Christmas school holidays, and March Break.

[9] In September 2023, the Respondent unilaterally decided that while Huxley was in his care, Huxley would be home schooled instead of attending St. John Paul II School. The Respondent’s decision in this regard was based upon changes he had noticed in Huxley’s behavior which he attributed to the Catholic school environment which was originally agreed upon by the Respondent and the Applicant.

[10] The Respondent’s unilateral decision to ignore the Order of Platana J. and to homeschool Huxley during the Respondent’s parenting time predictably had an impact on Huxley in a negative fashion. Just as predicable was the Applicant’s decision to bring an urgent motion to address the situation.

[11] In attempting to respond to the urgent motion of the Applicant, the Respondent experienced mental health issues which required hospitalization from October 26, 2023, to October 29, 2023, and again during another period in November 2023.

[12] A temporary Order dated November 2, 2023, was issued by Warkentin J. and which suspended the Respondent’s parenting time.

[13] Over the ensuing weeks and months, the Respondent was eventually permitted to have parenting time with the Children, initially on a supervised basis between January 19, 2024 and February 5, 2024. Once that parenting time worked out successfully, the Applicant allowed the Respondent to spend unsupervised parenting time with the Children. In this regard, between November 2023 until the Respondent’s motion was heard on April 2, 2024, the Respondent’s unsupervised parenting time occurred during the evenings and four overnight weekend visits.

Decision dated May 8, 2024

[14] After reviewing the materials filed and hearing submissions from the parties, I decided that it would be appropriate for the original parenting schedule of one week on one week off to be reinstated on a temporary basis. In addition, I ordered that the parenting time during the months of July and August 2024 were to be split equally as between the Applicant and the Respondent, but in blocks of two-week time periods instead of the four-week time periods provided in the final Order of Platana J. dated December 15, 2017.

[15] The basis for my decision on the temporary Order was that the Respondent acknowledged that his unilateral decision to ignore the Order of Justice Platana was wrong, and that he should not have removed Huxley from school.

[16] In addition, the Respondent provided evidence that he was taking care of his mental health issues and produced a number of medical reports supporting his efforts in this regard including reports from Dr. Matthew Jack Crookall, Dr. Kerry Anderson, Dr. Laura Noack, and social worker, Daniel Smith.

[17] In contrast to the evidence of the Respondent, the Applicant provided no evidence which supported a finding that the Respondent was not properly dealing with his mental health issues, or any evidence which suggested that resuming the previous parenting schedule would not be in the best interests of the Children.

General Principles

[18] The decisions of Nieckarz J. in B.S. v. K.S., 2023 ONSC 3366, and D.F. v. T.F., 2023 ONSC 3378, provide an excellent summary of the principles applicable to costs’ considerations in family law matters.

[19] In reviewing these decisions, a number of principles are relevant to the present case.

[20] Modern costs rules are designed to foster four fundamental purposes, as outlined in Mattina v. Mattina, 2018 ONCA 867:

(1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules, O. Reg. 114/99.

[21] Subrule 24(1) of the Family Law Rules, O. Reg. 114/99 creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs: see Sims-Howarth v. Bilcliffe. To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made: see Lawson v. Lawson.

[22] Subrule 18(14) of the Family Law Rules, O. Reg. 114/99 provides direction on how offers to settle can impact cost consequences. In addition, subrule 18(16) allows the court to consider any offer to settle, whether or not it complies with subrule 18(14): see Gurley v. Gurley, 2013 ONCJ 482.

[23] The direction provided by subrule 18(14) requires a number of factors to exist before a party is entitled to claim full recovery of costs from the date of an offer to settle, including:

(a) the offer is made at least one day before the motion is argued; (b) that it is open for acceptance at the time the motion is heard; and (c) the result of the motion is as favourable or more favourable than the terms of the offer.

[24] Subrule 18(15) states that where there is an offer to settle made by one party, the onus of proving that the offer is as or more favourable than the trial result is on the person making the offer: see Neilipovitz v. Neilipovitz, 2014 ONSC 4849. In sorting out this issue, a court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order: see Wilson v. Kovalev, 2016 ONSC 163.

[25] Having said that, an offer that is close is not good enough to attract the costs consequences of r. 18(14). The offer must be as good or more favorable than the trial result.

[26] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality: see Beaver v. Hill, 2018 ONCA 840.

[27] In deciding costs, courts should consider the factors set out in subrule 24(12) of the Family Law Rules, O. Reg. 114/99 which reads as follows:

24(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) any other relevant matter.

[28] Both Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (Ont. C.A.) and Delellis v. Delellis and Delellis (“Delellis") point out that when assessing costs, it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at para. 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs . . . . Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

[29] Accordingly, one of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding: Farjad-Tehrani v. Karimpour, 2009 ONSC 2186, [2009] O.J. No. 1665, at para. 32, aff’d 2010 ONCA 326, at para. 4.

Decision

[30] Clearly the Respondent was successful in his motion in that the parenting time during the school year was restored.

[31] In terms of settlement proposals, the Applicant did not serve a r. 18(14) Offer to Settle.

[32] The Respondent served two Offers to Settle, one dated February 15, 2024, and one dated March 14, 2024. Both offers were reasonable. However, neither of them was as good as or better than the decision of May 8, 2024.

[33] The Respondent’s Offer to Settle of February 15, 2024, addressed a number of issues which were not dealt with in the May 8, 2024, decision.

[34] The Respondent’s Offer to Settle of March 14, 2024, reflected a return to the week about parenting schedule, which was provided in the May 8, 2024, decision. However, it did not address the summer holiday schedule in the manner provided in the May 8, 2024, decision, and the week about parenting schedule was only made on a temporary basis to gauge the Respondent’s willingness to recognize the schooling provisions agreed upon by the parties.

[35] In reviewing the costs’ positions of the parties, I note that the Respondent advised the Applicant on March 6, 2024 – before the motion was brought – that a parenting time motion would cost at least $3,500, and that substantial indemnity costs would be sought if a motion became necessary.

[36] The Respondent’s Bill of Costs provides the background to his claim for costs in the amount of $8,812 which includes $7,628 in fees and $170 in disbursements, plus HST. This amount contemplates costs on a full recovery basis, which I am not prepared to award.

[37] While the materials of the Respondent adequately outline his position with respect to the nature of a parenting schedule which would be in the best interests of the Children, a significant amount of evidence addressed the issue of Huxley’s attendance at a Catholic school, especially the affidavit sworn March 29, 2024. This evidence seemingly attempts to justify the Respondent’s decision to pull Huxley out of school contrary to the order of Platana J. dated December 15, 2017. As per my reasons of May 8, 2024, the Respondent’s decision to unilaterally contravene an order of this court was wrong and misguided. As such, the legal costs incurred in attempting to justify his decision in this regard are not something I am prepared to consider.

[38] The Applicant argues that the Respondent should bear his own costs of the motion, or alternatively only be awarded $2,000 in fees, disbursements and HST. These submissions of the Applicant include her own bill of costs which outlines fees, disbursements and HST incurred in the amount of $6,525.75 for her efforts in defending the Respondent’s motion.

[39] In coming to my decision on costs, I have considered the following:

1. the Respondent was successful;
2. the offer of the Respondent dated March 14, 2024, came very close to the relief obtained in the May 8, 2024, decision;
3. no Offer to Settle was made by the Applicant, requiring the Respondent to proceed to argue the motion;
4. the Applicant did not acknowledge that the Respondent’s mental health issues were successfully being treated, notwithstanding her personal interactions with the Respondent, the closure of the KRRDCFS file, the medical and affidavit evidence produced and filed by the Respondent, and the success of the period of supervised access;
5. some of the fees incurred in support of the Respondent’s position during the motion were unnecessary and therefore not proportional to the end result;
6. the Respondent provided the Applicant with an estimate of the fees and disbursements which would be incurred if the motion proceeded in the amount of at least $3,500; and
7. the Applicant’s fees and disbursements incurred in her response to the Respondent’s motion were over $6,500 including HST;

[40] It is fair and reasonable for costs to be awarded to the Respondent in the amount of $4,500 inclusive of fees, disbursements and HST.

“originally signed”

The Hon. Mr. Justice S.J. Wojciechowski

Released: July 11, 2024

COURT FILE NO.: FS-16-5611-01 DATE: 2024-07-11 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Erinn Lindsay Catherine Gravelle Applicant - and – Peter Joseph Welch Respondent REASONS ON COSTS Wojciechowski J. Released: July 11, 2024