Endorsement

Court File No.: FS-30-19
Date: 2025-04-22
Superior Court of Justice – Ontario

Re: Brittany Frances Guilbault, Applicant
And: Austin Spencer McCall, Respondent

Before: Thomas A. Heeney
Counsel: Paul C. Buttigieg, counsel for the Applicant
The Respondent, self-represented
Heard: December 10, 2024 at Woodstock; written submissions on costs completed January 17, 2025

Introduction

[1] This matter was before the court on December 10, 2024 for a trial, estimated to last over 6 days. However, rather than begin the trial the parties entered into a full and final settlement, whereby they consented to a final order that dealt with all issues except costs.

[2] Written submissions on costs were to be served and filed by the applicant by January 17, 2025, with the respondent’s responding submissions to be served and filed by January 31, 2025, and any reply by February 7, 2025.

[3] The applicant served and filed her costs submissions on time. The respondent has filed nothing, and the time for so doing has expired. I will, therefore, decide the issue of costs on the material before me, without any input from the respondent.

[4] This action has been dragging on for almost six years, having been commenced in July, 2019. The issues included decision-making with respect to the two children of the relationship, parenting time and child support.

The Applicant’s Position on Costs

[5] The applicant submits that the final order that was made, on consent, was “nearly identical” to an offer to settle she served on the respondent one year earlier, dated October 27, 2023. The offer was severable, so that it would have been open for the respondent to accept some terms and reject others. Based on this offer, as well as the respondent’s alleged unreasonable behaviour, she seeks full recovery costs in the amount of $34,203.31.

[6] The applicant claims that the respondent never responded to this offer, and therefore acted unreasonably. In her written submissions on costs, she says: “At no time did Austin respond to Brittany’s Offer, nor did he deliver any Offer to Settle of his own, either, despite being represented by competent family law counsel. This made settlement of the Trial claims prior to December 10, 2024, practically impossible as Brittany had no sense of Austin’s position in relation to her claims.”

The Respondent’s Offer and Settlement Process

[7] It is apparent from reviewing the court file that this assertion is simply not true. The parties had a combined Settlement Conference/Trial Management Conference on December 14, 2023, 6 weeks after the applicant delivered her offer, where both parties attended before Moore J. Mr. Buttigieg was in attendance as counsel for the applicant, and “S. Harvey” attended as agent for the respondent. In preparation for this conference, the respondent served and filed a settlement conference brief on December 8, 2023. As is expected at a settlement conference, a formal Offer to Settle was attached to the brief, bearing the same date. This offer to settle represents his response to the earlier offer of the applicant, served on October 27, 2023. It sets out his position in great detail, in over 21 paragraphs and many subparagraphs. Thus, the applicant was, in fact, able to clearly determine what the respondent’s position was in relation to her claims. As will be discussed below, it turns out that the parties agreed on many of the issues, and were not very far apart on most of the others. Like the offer of the applicant, the respondent’s offer was severable.

[8] For whatever reason, though, the case did not settle. On the evening before trial, December 9, 2024, the respondent sent an e-mail to counsel for the applicant, saying that he was “looking for the following changes to be made to your offer, highlighted in yellow”. This appeared to have been the catalyst that was needed to get the case settled, because it did settle the following morning.

[9] The applicant states that the failure to respond to her comprehensive Offer to Settle of October 27, 2023 constitutes unreasonable behaviour on the respondent’s part, and that had he responded earlier to the offer, a great deal of time and legal expense in preparing for trial could have been saved. I agree that this would have constituted unreasonable behaviour, had it actually occurred. However, it did not. I am not prepared to attribute any unreasonable conduct to the respondent arising out of the fact that the case did not settle until the eve of trial. All I am able to say is that neither party appeared to be prepared to move from their offers of October 27, 2023 and December 8, 2023 respectively, until the respondent proactively initiated further settlement discussions on December 9, 2024.

Rule 18(14) and Comparison of Offers

[10] Rule 18(14) of the Family Law Rules (the “Rules”) provides that a party is entitled to full recovery costs from the time an Offer to Settle was served, provided that several conditions are met. One of those conditions is that the offering party obtains an order that is “as favourable as or more favourable than the offer”.

[11] It is, therefore, necessary to examine whether the applicant’s offer was, indeed, “nearly identical” to the final order, to see whether the applicant is entitled to full recovery costs on that basis.

[12] The applicant included a side-by-side breakdown of the offer and the final order in her written submissions. The key points of comparison are as follows:

• Both provided that the applicant would have sole decision-making responsibility with respect to the two children. The parties agreed to consult with each other to try to reach a joint decision, but in the event of disagreement, the applicant was to make the final decision;
• Both provided that the primary residence of the children will be with the applicant. The provisions regarding sharing of information about the health and education of the children are identical;
• Both provided for the respondent to have parenting time with the children on alternating weekends from Friday after school until Sunday at 5:30 p.m., plus one mid-week visit from after school until 7 p.m. (as per the offer) or 8:30 p.m. (as per the order);
• Christmas parenting time was not the same in both. The offer provided that the applicant would have the children each year from Dec. 24 until Dec. 26, and the respondent would have them each year from Dec. 26 to Dec. 27. The order provided that Christmas would be split into two equal weeks, and the children would be with each parent for one of those weeks. Other holiday time was essentially the same in both;
• The provisions regarding travel with the children are generally similar in both, although there are several terms in the offer that are not included in the order. The offer provided for the right to travel with the children in the summer, with the consent of the other parent (not to be unreasonably withheld), for up to 10 days, whereas the order provided for a duration of 14 days;
• The offer contained 6 paragraphs with detailed provisions regarding mobility, none of which were included in the order;
• Child support in the offer was to be $708/m, being the table amount of support for two children based on the respondent’s current annual income of $47,000. The order, though, provided for support of $625/m, which is the table amount for two children based on the respondent’s “agreed-income” of $42,000;
• With regard to s. 7 expenses, the offer proposed that they be shared 75% to the respondent and 25% to the applicant. The order was less generous to the applicant, and provided that swimming, skating, soccer, karate and hockey would be split 50/50, while other s. 7 expenses would be shared 60% to the respondent and 40% to the applicant;
• The provisions regarding the respondent providing extended health coverage for the children are similar, although the wording is different;
• With regard to life insurance, the offer provided that the respondent is required to obtain a term life insurance policy in the face amount of $250,000, with the applicant to be the irrevocable beneficiary so long as child support is payable. The order, by contrast, only obligates the respondent to name the applicant as the irrevocable beneficiary of his current life insurance policy (2x his salary) as security for child support. Given that his income was agreed to be $42,000, this represents $84,000 in coverage in the order, as opposed to $250,000 in coverage in the offer.

[13] The applicant failed to mention the final term of the consent order in her submissions on costs. It was that “the children’s surnames shall be amended from ‘Guilbault’ to ‘McCall Guibault’”, at the respondent’s expense. This term was not in the applicant’s offer, and was clearly put into the final order for the respondent’s sole benefit.

[14] I conclude that, while the offer and final order are similar in many respects, it cannot be said that they are “nearly identical” as counsel represented them to be in the applicant’s submissions on costs. I would have expected counsel to have clearly identified all areas of difference in his submissions, rather than compel me to sift through 31 paragraphs and many subparagraphs to see if there were any areas of difference. Having done so, it is disturbing to have found several. The fact that the term regarding changing the children’s name was not mentioned at all in the applicant’s submissions is also disturbing. Much more disturbing is the clearly erroneous statement identified above, that the respondent never responded to the applicant’s October 27, 2023 offer, and never provided an Offer to Settle of his own.

[15] While the differences in the offer and the order are relatively minor, they cannot be ignored. The order provides for $83/m less child support than the offer. The order requires the respondent to pay a smaller share of s. 7 expenses than the offer. The order also requires the respondent to simply designate the applicant as the irrevocable beneficiary on the policy provided by his employer as part of his wage package, as security for the payment of child support, which amounts to $84,000 in coverage. The offer would have required him to purchase a term life insurance policy with a death benefit of $250,000, the premium for which would not have been insignificant. The term giving the respondent the right to change the names of the children to include his own family name was not even mentioned in the applicant’s offer, and clearly constitutes a “win” for the respondent.

[16] Accordingly, the applicant cannot rely upon r. 18(14) to support her claim for full indemnity costs.

Divided Success and the Rules on Costs

[17] Rule 24(3) provides that there is a presumption that a successful party is entitled to costs. Where success is divided, r. 24(4) provides that the court may apportion costs as appropriate.

[18] Since there was no trial in this case, it is difficult to determine which party was successful. In a trial, the judge hears the opening and closing statements, and the evidence called by each party, all of which make it clear what issues the parties are fighting about, and what position each side is taking on those issues. This makes it relatively easy to say which party was successful on each issue, once those issues are adjudicated upon by the judge.

[19] In a negotiated settlement, however, no evidence or argument is heard by the judge, and no decision is made by the judge. Negotiating a settlement involves give and take by each party, often involving compromising on one or more issues in order to obtain a compromise from the opposing party on other issues. As Murray J. observed in Johanns v. Fulford, 2010 ONCJ 756, at para 15, the “settlement may be the result of a number of factors, and not just the legal correctness of a party's position, or the ‘reasonableness’ of that position.”

[20] The Rules provide no specific guidance as to how a court is to determine costs following a settlement. Accordingly, the court is compelled to apply the rules as they are. Given the importance the Rules attach to whether or not a party has been successful, and given the absence of a trial where a winner or loser may have been obvious, courts have looked at offers to settle and the pleadings and compared them with the final settlement as one way of assessing success or the lack thereof: see, for example, Johanns (supra); Jones v. Jones.

Comparison of Offers and Pleadings

[21] I have already reviewed the applicant’s Offer to Settle and compared it to the final order, and it is, therefore, appropriate to do the same with the respondent’s Offer to Settle dated December 8, 2023. Following the same order as the above comparison, the respondent’s settlement position, compared to the final order, is as follows:

• His offer provided that the parties would have shared decision-making responsibility, and would consult with each other to try to reach a compromise. The order provided that the applicant would have sole decision-making responsibility. They had an obligation to consult with each other to try to reach a joint decision, but the applicant has the final say in the event of disagreement;
• Both his offer and the order provided that primary residence of the children would be with the applicant;
• The offer provided that he would have parenting time on alternate weekends from Friday after school until Monday morning, plus two overnight mid-week visits, from Tuesday after school until morning drop-off at school on Wednesday, and every Thursday after school until drop-off at school on Friday. The order provided for alternate weekends, but only until Sunday at 5:30 p.m., not Monday morning. It also provided for only one mid-week visit, in the evening only and not overnight;
• For Christmas parenting time, the offer provided that in odd-numbered years, the respondent would have the children from noon on December 24 until 4 p.m. on December 25, while the applicant would have them from 4 p.m. on December 25 until 7 p.m. on December 26. In even numbered years it would reverse. The remainder of the Christmas break would be divided evenly so each party received either the first seven days or the last, alternating each year. In the order, Christmas is simply split into two equal weeks, with the applicant having week one and the respondent having week two;
• For travel, the offer provided for up to two weeks per year, inside or outside of Canada, without the consent of the other parent. That is the same duration as in the order, and is more than the applicant’s offer of 10 days. However, his offer provided that the other parent’s consent would not be required, whereas the order provided that it was required, but would not be unreasonably withheld;
• Child support was proposed at $708 per month, based on the respondent having income of $47,000 per year. This is less than the order, which provided for $625 per month based on “agreed-income” of $42,000. The respondent’s offer regarding support was identical to the applicant’s offer;
• The offer provided that s. 7 expenses be split 50/50. The order provided that expenses for swimming, skating, soccer, karate and hockey would be split 50/50, while other s. 7 expenses would be shared 60% to the respondent and 40% to the applicant;
• The offer and the order both provide that the respondent would provide extended health coverage for the children;
• The offer provided that the respondent would maintain a life insurance policy, with the applicant as the beneficiary, for so long as he is obligated to pay child support, in the amount of $125,000. The order only requires him to provide coverage through the life insurance provided as part of his wage package, at 2x his salary, for total coverage of $84,000;
• The offer provided that “McCall” shall be added to the children’s surname. The order includes this provision.

[22] It is clear from a review of both Offers to Settle that the parties were in substantial agreement on most of the issues. As to the issues in dispute, I conclude that the applicant was successful (in the sense that the final order was the same or more favourable to her than her Offer to Settle), on the following issues:

• Sole decision-making authority over the children;
• The respondent’s parenting time, in that alternate weekend access ended on Sunday evening instead of Monday morning, and the respondent had only one mid-week visit per week, not two, and it was in the evening, not overnight.

[23] The respondent was successful on the following disputed issues:

• Travel time of two weeks with the children instead of 10 days;
• Child support is less than the order provided;
• He was partially successful regarding s. 7 expenses, in that he proposed a 50/50 split on all expenses, whereas the order only divides expenses for swimming, skating, soccer, karate and hockey at 50/50, while other s. 7 expenses would be shared 60% to the respondent and 40% to the applicant. This still beats the applicant’s offer that all expenses be split 75/25 in her favour;
• Life insurance was ordered at a lesser amount than he had offered to provide;
• His surname is to be added to the children’s surname.

[24] As to Christmas access, the order appears to be a compromise between their two positions.

Pleadings and Barometer of Success

[25] A comparison between the original pleadings and the final order is also a useful barometer of success. In her Notice of Application dated July 22, 2019, the applicant claimed the following:

• Sole custody;
• Child support as per the Guidelines;
• Access to the respondent, in the applicant’s discretion as to frequency, location, duration and supervision;
• An order permitting the applicant to travel with the child (there was only one child at the time, as the second child was born in November, 2019) outside of Canada, and that the respondent’s consent be dispensed with;
• An order that the respondent maintain a life insurance policy in the amount of $500,000 with the applicant to be the sole irrevocable beneficiary in trust;
• An order that the respondent maintain extended health care benefits for the child.

[26] In comparison to the order, the applicant was successful in obtaining the equivalent of sole custody, as well as child support and extended health coverage. She was unsuccessful in her claims regarding her discretion over the respondent’s access, and she received life insurance coverage of less than 1/5th of what she had claimed. She was also unsuccessful in obtaining the exclusive right to travel without the other parent’s consent.

[27] In the respondent’s Answer and Claim by Respondent, he claimed the following:

• Joint custody of the two children;
• Access each week from Saturday morning to Sunday evening, plus the sharing of holidays and school vacation;
• That he pay child support of $489 per month, which was less than the table amount of $599 per month based on his income of $40,170, because he was incurring $220 per month in travelling costs to exercise access;
• That each party be allowed to travel outside of Canada only with the other parent’s written consent, which was not to be unreasonably withheld.

[28] As compared to the final order, the respondent was unsuccessful on joint custody, in terms of the decision-making authority aspect of custody. However, as to the physical sharing of time that was often inherent in a joint custody order, it is noteworthy that he had agreed from the outset that he would only receive access to the children, thereby conceding that primary residence of the children should be with the applicant. This is significant, because it means that the final order granting primary residence of the children to the applicant cannot be considered as a win for her, because it was never in issue.

[29] The respondent was also successful on the access issue, in that he receives regular weekend access and holiday time, without being constrained by the applicant’s discretion. His claim regarding travel outside of Canada was in accord with the order, in that it requires the consent of both parents, not to be unreasonably withheld. He was unsuccessful regarding child support, since he is paying the full table amount of support based on his current income, without any deduction for travelling expenses to exercise access.

[30] In my view, success was divided in this case, in that the applicant was successful on some issues, while the respondent was successful on others. Thus, while the applicant may be entitled to some costs, I find that she is not entitled to the full recovery costs she is claiming.

Unreasonable Behaviour and Rule 24

[31] The concept of “unreasonable behaviour” is an important factor in determining the entitlement to, and quantum of, a costs award. Rules 24(7) and (8) provide as follows:

(7) A successful party who has behaved unreasonably during a step in a 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.

(8) In deciding whether a successful party has behaved unreasonably, the court may consider, (a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or did not accept.

[32] I have already considered, and rejected, the applicant’s submission that the respondent behaved unreasonably with regard to her Offer to Settle dated October 27, 2023. She also alleged that the respondent “took unreasonable positions, i.e. equal parenting time despite the children never having equal time with their father”.

[33] I reject that submission. I have already reviewed the respondent’s pleadings and observed that, while he was seeking joint custody, he was not seeking shared parenting time but asked for access only. Furthermore, in his Offer to Settle of December 8, 2023, he proposed that primary residence of the children be with the applicant, with the respondent having parenting time only on weekends, plus mid-week visits. I do agree, though, that his demand for two mid-week overnight visits was excessive, and was unreasonable in view of the final result.

[34] The respondent, given that he filed no submissions as to costs, made no allegations of unreasonable behaviour on the part of the applicant. I do, however, consider that the omissions and misstatements in the applicant’s submissions on costs approach unreasonable behaviour.

Factors in Setting the Amount of Costs

[35] The reasonableness of a party’s behaviour is among the factors to be considered in setting the amount of costs, as provided in r. 24(14):

(14) In setting the amount of costs in relation to a step in a case, the court may consider, (a) the reasonableness and proportionality of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step: (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 conditions set out in subrule (12) or 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.

[36] In considering those factors, I accept the submission of the applicant that the court should be alive to the fact that modern cost rules are designed to foster four fundamental principles: (a) to partially indemnify successful litigants for the cost of the litigation; (b) to encourage settlement; (c) to discourage and sanction inappropriate behaviour by litigants; and (d) to ensure that cases are dealt with justly in accordance with the primary objective of the Rules set out in r. 2(2).

[37] With regard to the important objective of encouraging settlement, costs rules operate, in my view, like both a carrot and a stick. The stick is the risk that a party may find himself on the paying end of a large costs award if he refuses to settle, and ends up losing after a contested trial. The carrot, on the other hand, should be that a party who chooses to settle, even at the eleventh hour, and thereby avoids the expense and acrimony of a contested trial, should expect some favourable treatment from the court on the issue of costs. If a litigant is to be hit with the same costs award after a settlement as he would have faced after losing at trial, there would be little incentive to settle. Rather, the incentive would be to go to trial and hope for success.

[38] This approach, I find, is applicable when considering the reasonableness of a party’s behavior, under r. 24(14)(a)(i). One could say that proposing two mid-week overnight parenting time visits, in addition to alternate weekends, was unreasonable. However, ultimately settling the case and agreeing to one mid-week visit, not overnight, constitutes reasonable behaviour, for which he should be given some credit.

Proportionality and Legal Fees

[39] The other two factors enumerated in r. 24(14) that are significant in determining the issue of costs in this case are (ii) the time spent by each party, and (iv) any legal fees, including the number of lawyers and their rates. The Costs Outline filed by the applicant shows the time spent by her counsel and their hourly rates. It categorizes the time spent as follows:

• Correspondence, emails, meetings and telephone calls: 26.05 hrs;
• Preparation of court materials: 20.9 hrs;
• Preparation for and attendance at Trial Management Conference via Zoom, Dec. 14 2023: 3.4 hrs;
• Preparation for and attendance at Assignment Court, Sept. 12, 2024: 3.8 hrs;
• Preparation for and attendance at trial, in person, December 11, 2023: 12.6 hrs;
• Preparation of costs submissions and bill of costs: 3.5 hrs plus 0.5 hrs by law clerk.

[40] This adds up to total counsel time spent of 70.25 hours, which is the equivalent of working for the entire day, 5 days a week, for two full business weeks on nothing but this case. Mr. Buttigieg’s hourly rate is $420, and he has over 23 years of experience. The hourly rate of his associate, Berj Bedros, with just over 2 years experience, is $300. The amount claimed is $30,268.50 plus HST of $3,934.91, for a total claim of $34,203.41.

[41] There were two contested motions during the life of this file. One related to the applicant’s successful motion allowing her to move from Milton to Woodstock. The second related to the applicant’s successful emergency motion for an order compelling the respondent to deliver over the children to her, following his failure to return them at the end of a scheduled summer access visit. Through the office of the Trial Coordinator, counsel confirmed that the time spent on these motions was not included in the Costs Outline.

[42] On the first, the applicant claimed full recovery costs of $11,270. Hebner J. ruled that the respondent did not act unreasonably in opposing the motion, and awarded the applicant $6,000. On the second, the parties settled the issue of costs at $7,500.

[43] I mention these two awards because they are relevant to the overall question of proportionality. When the full recovery costs of those two motions is added to the full indemnity costs now being claimed, the total is $52,973.

[44] This amount is shockingly high for a family law case in Woodstock, particularly for a case that never had a trial. Furthermore, this is essentially a one-issue case. There were no property issues, which can often incur high costs for business valuations, etc. There were no spousal support claims. There was never an issue regarding the primary residence of the children, which again can be an expensive issue to litigate. Child support was never really an issue, since the applicant’s entitlement to receive child support flows from having primary residence of the children, and is determined by simply looking up the appropriate number in the Child Support Guidelines. Instead, the case was almost entirely about the respondent’s access to the children.

[45] I find that counsel fees totalling $52,973, including HST, is entirely disproportionate to a case of this nature.

Costs for Conferences

[46] Furthermore, the applicant’s claim for costs for attending at the combined Settlement Conference/Trial Management Conference on December 14, 2023 in the amount of $1,428 is improper. Rule 17(18) provides as follows:

(18) Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (1), (a) order the party to pay the costs of the conference immediately; (b) decide the amount of the costs; and (c) give any directions that are needed.

[47] No costs were awarded by the presiding judge at that conference, and there is no evidence that the criteria for making such an award were met.

Final Analysis and Order

[48] Given the fact that there was divided success to some degree, and that both parties acted reasonably in settling the case and avoiding a trial, an argument could be made that there should be no costs, or that any award that is made should be relatively nominal. However, as I have already observed, this was essentially a one-issue case, and that issue was the respondent’s access/parenting time. Given that the final order closely mirrors the applicant’s offer on that issue, greater weight should be afforded to her success on this issue than the respondent’s success on less important issues.

[49] An additional factor to take into account is that the respondent has been largely self-represented throughout most of this case. He did hire agents to speak for him from time to time, but he did not have a lawyer on continuous retainer as the applicant did. This means, for example, that the time wasted in preparing for a trial that never ended up happening would have cost the applicant a considerable amount in legal costs, while the respondent would be getting a free ride. In such circumstances, it is appropriate that the respondent should share that burden in legal fees.

[50] Considering all of the above, I am satisfied that a fair and reasonable amount for the respondent to pay in costs is $18,000 all inclusive. An order shall go in that regard.

Thomas A. Heeney

Date: April 22, 2025