Bellerive v. Hammond, 2014 ONCJ 770

Sault Ste. Marie COURT FILE No. 42/98-01 and 42/98-02 DATE: 2014-12-09 Citation: Bellerive v. Hammond , 2014 ONCJ 770 ONTARIO COURT OF JUSTICE IN THE MATTER OF the Children’s Law Reform Act , R.S.O. 1990, c. C. 12 BETWEEN: ) ) ) PATTY BELLERIVE ) Annalisa S. Rasaiah, for Patty Bellerive ) ) — AND — ) ) ) KEVIN HAMMOND ) Benjamin F. Pritchard, for Kevin Hammond ) ) ) Kenneth Lawson, OCL counsel for the child, Katie Hammond ) ) ) HEARD: by written submissions kukurin J. [ 1 ] This is a decision on costs following a twenty-one day trial.

The parties are the mother and father of the child, Katie who was born in December 1996, and who will be eighteen years of age this month. Background: [ 2 ] It is not necessary to recount the litigation history of these parties as it is set out in detail in the Reasons for judgment released following this lengthy trial (since reported at [2012] O.J. No. 3288, 2012 ONCJ 458 ). Suffice it to say that these parents have been in litigation more often than not throughout Katie’s life. [ 3 ] The trial resulted in an order that dismissed each of the several claims of the father made in the proceeding.

The end result was the variation of a consent paternal access order dated August 12, 2003 the terms of which were very detailed and comprehensive. The paternal access provisions of that order were terminated and replaced with an order that paternal access was to be subject to the wishes of the child at all times. [ 4 ] Directions were given with respect to any claims for costs of the proceeding. [1] The mother is pursuing costs. The father has responded.

Counsel for the Office of the Children’s Lawyer (OCL) has confirmed that the OCL is not seeking costs and is not taking any position, nor participating in the costs issue. [ 5 ] The mother is seeking costs on a full recovery basis for the entire proceeding. This amounts to $102,700 which is comprised of fees ($87,000), disbursements ($4,000) and HST ($11,700), all rounded off. Alternatively, she asks for (partial indemnity) costs to the date of her first offer, and costs on a full recovery basis thereafter.

As a second alternative, she asks that she be awarded costs in a fair and reasonable amount. [ 6 ] The father does not deny that the mother should be awarded costs. His submissions on costs appear to be threefold: (

a) that costs that are awarded should be fair and reasonable and not a full indemnity of what the mother has incurred for legal expenses; (

b) that, because of several circumstances (with which I will deal below), he was acting reasonably throughout this entire proceeding; and

(

c) that the impact of an order of costs of the magnitude sought by the mother would be financially devastating for him, an eventuality that would not be in his best interests, nor in those of the state, nor in those of the child. [ 7 ] Perhaps the first step in approaching a determination of an issue of costs is to step back to establish a full perspective of what it is for which costs are being sought. The trial involved an Application (filed April 11, 2007) and a Motion to Change (filed June 11, 2009), both by the father.

An order was made at a Trial Management Conference (TMC) on June 23, 2009 that the Application and the Motion to Change be heard together, and that evidence in one deemed to be evidence in the other. Nine days for trial were set in the month of July, 2009. Almost all were used up by the father in presenting his evidence. Additional days were set for October and November 2009, contingent on another, unrelated trial matter not going ahead. It did. Those contingent dates were cancelled and seven more new dates set for February, March and April 2010.

These were not enough and three more days were eventually found to complete the trial. [ 8 ] This case was thoroughly conferenced. Three trial management conferences were held to ensure that there would be no surprises to send the case off the rails. It is fair to say that the claims advanced at trial in 2009-2010 were far different from the claims made back in 2007. What claims had been made and where they stood just prior to start of trial was outlined in a TMC memo, an extract of which is set out below: 3. Claims for Trial – The following are all of the claims and their current status (

a) Application by father – S.36(1) CLRA order – opposed by mother - S.36(2) CLRA order – opposed by mother - costs of application – opposed by mother (

b) Answer of mother - OCL order – obtained – no costs sought - Police and CAS records – order obtained – Mother seeks costs - Restraining order – withdrawn by mother – no costs - Costs of Application - opposed by father (

c) Motion to Change by father - vary to sole custody to father – opposed by mother - vary access – to mother – opposed by mother - vary child support to nil (contingent) – opposed by mother - police assistance order – opposed by mother (

d) Response to Motion by mother-vary paternal access to no access – opposed by father - costs of motion to change (full indemnity) – opposed by father The father has not included a claim for costs in his motion to change. He wishes to do so. The mother does not object to the inclusion of this claim. She opposes this claim. [ 9 ] From a global perspective, the father received not one thing that he sought.

The mother wanted paternal access provisions varied to one of no access to the father, or, alternatively, that any paternal access was to be subject to the request of the child and the approval of the Children’s Aid Society. This claim was dismissed. Her only other substantive claim was for an order restraining the father from harassing the child, but this claim was withdrawn by her prior to trial. In short, she was basically opposing what the father was seeking. His main claim was for an order changing sole custody from the mother to himself.

Had he been successful, many of his other claims would have resolved themselves. [2] [ 10 ] In terms of ‘success’ in this litigation, the father was totally unsuccessful. The mother was totally successful in opposing the father’s claims. In addition, since the end result left paternal access in the discretion of the child, the mother essentially was successful, even though her primary claim for no paternal access was dismissed. The Law Relating to Costs: [ 11 ] Family law litigation is not a new phenomenon. However, the way family law is litigated has undergone fundamental changes in the last half century.

One area where this change has been nothing short of dramatic is that of costs relating to matters of custody and access. Judicial attitudes towards claims for costs were rather dismissive, almost as if costs didn’t fit in with this kind of litigation. An oft cited case which exemplified this view of family law costs is that of Talsky [3] , a decision of the Ontario Court of Appeal dating back to 1973.

It would not be an exaggeration to say that the volume of family litigation in Ontario mushroomed with changes in family related statutes starting in the mid-1970’s. [4] This view of the law of costs in family matters is now virtually extinct, and the Ontario Court of Appeal has long since overruled its view of costs as stated in Talsky. [ 12 ] The foundational judicial authority to award costs in a proceeding has not changed. It is found in the Courts of Justice Act . It is

unequivocally discretionary. S.131. Costs.—

(1) Subject to the provisions of

an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. R.S.O. 1990, c. C-43 , s. 1 [ 13 ] Of increased importance, especially since 1999, the year when the Family Law Rules came into being, are the opening words of this

section 131. The statutory discretion given to judges to award (or not award) costs was circumscribed by these new Rules. And the Family Law Rules contained more than just a passing reference to costs. [5] One entire Rule – Rule 24 – was dedicated to the matter of costs. Another Rule – Rule 18 – was integrally tied to costs as a consequence of certain acts or omissions of parties in family matters.

While there are other references to costs elsewhere in the Rules, these two are the main provisions that govern family law litigants, their counsel, and the court in the issue of costs. [ 14 ] For family law litigants, and for their counsel, being aware of consequences by way of costs under the Family Law Rules should inform their decisions in the litigation process. Prudent persons don’t start building houses unless they are confident that they have the means to pay. Nor do they plan on a mansion when they can only afford a bungalow. This applies to respondents as well as to applicants.

Extreme claims and responses, ill founded intransigence in positions during litigation, and unrealistic cross claims may not only sink the family litigant’s ship, but make him or her pay for the experience afterwards. This awareness of costs, and of the Rules as they relate to costs, should be a constant consideration, ever in the background.

I would go so far as to suggest that lawyers have a duty to inform their clients of potential costs consequences prior to their first step in a family law case, and for certain, periodically thereafter as the case unfolds. [6] [ 15 ] From a judicial perspective, a claim for costs has to be approached on a systematic basis. The Tariff of Costs in the former Rules of this court are gone, and in the view of some, with good riddance, as they were not reflective of the reality of family litigation. Equally gone is the ability of judges to exercise their discretion on costs by gut feeling.

Parties are entitled to know why they have to pay costs, and how the courts arrived at an amount of the costs that they are awarding. This means that costs decisions must take into account principles relating to costs and apply them to the specific case in which the issue of costs arises. [ 16 ] Where are these ‘principles’? They start with the statutory

section 131 of the Courts of Justice Act . They are found in the Family Law Rules , in particular Rule 24 and Rule 18 . They are also found in the jurisprudence that has proliferated since the coming into force of these Rules. “Costs” after all, is a euphemism for money, and money is always important. Whatever may be the issues in a family law case, costs is always in the mix, even if not specifically made a claim. [ 17 ] Since these ‘principles’ apply to every issue of costs, it seems appropriate to devise a systematic way to approach a decision on costs. In fact, this is done by jurists.

Some have devised a formal procedure or protocol which they follow in discrete steps. [7] For others, the process is more or less a recitation of what principle applies, and why it applies, to the costs analysis in the specific case being dealt with. There must, of course, be a starting point and an end point. What lies between those two points needn’t be in accordance with any specific formula but must conform to now fairly well established approaches to costs determinations. [ 18 ] My starting point is to decide if anyone has claimed costs.

If no one has, it seems to be a needless exercise to embark on a costs determination. This may seem like it is stating the obvious. However, subrule 24(10) [8] is worded in such a way as to place a positive obligation on every judge to make two decisions at every step of every proceeding. These are to decide any entitlement to costs, and to decide the amount of such costs. In reality, few judges seems to do this in absence of a request for costs of whatever step is being dealt with, articulated in some way by one or more of the parties. In fact, I do not do this as a matter of course.

I do not ask at each step if anyone is seeking an order for costs of that step. Perhaps this might be a good practice to adopt, and for a number of good reasons. If a request is made, however, it is clearly the duty of the court to make these determinations, and to do so in a

summary manner. Where the costs of a step are not judicially dealt with in accordance with this subrule, the prevailing judicial view seems to be that no party is entitled to costs of that step. [9] [ 19 ] There was a claim for costs made by both mother and father in each of their pleadings. Costs, by their very nature are an after- the-fact issue. Most litigants don’t know what the final outcome of what their case (or step in their case) is going to be. It is only once they know the final result that costs can realistically be pursued.

While submissions on costs can be made contemporaneously with submissions on other issues in a case, these would be contingent on outcome on those other issues. The more usually encountered approach is to await the outcome before beginning to argue for costs. In the case before me, I was not receptive to dealing with costs at all until I had rendered my decision on the substantive claims in the case. For a number of reasons, I was not able deal with costs in a “summary” manner even after rendering my decision following the trial.

Accordingly, I gave directions for the issue of costs to be determined by a formal motion to be brought within a certain time frame. Only the mother’s claim for costs has been pursued as a result of that direction. So as not to leave the father’s claims for costs unaddressed, his claims are dismissed. [ 20 ] The next step in the process of deciding costs is the decision of which party in the case is the successful party. This is so because of a presumption created by Rule 24(1) that a successful party is entitled to his or her costs. [10] The choice of the wording of this subsection is hardly accidental.

The presumption is one of ‘entitlement’ to costs. Put in another way, the point of commencement of the costs determination process, once the successful party has been identified, is that costs of whatever step is being dealt with automatically default in favour of this successful party. In some cases, the decision of who is the successful party is not clear cut. There may be divided success [11] and this division may not necessarily be on a 50:50 ratio. And there may be a variety of reasons for the division of success.

In the present case, divided success is not a consideration that complicates my determination of costs. For the reasons set out in paragraphs [9] and [10] above, the mother is clearly identified as the successful party at the trial of this case. There is no apportionment of costs needed on account of any success of the father as he was completely unsuccessful in his claims. [ 21 ] Logically, the next step in the process should perhaps come before the determination of who was the successful party. It is the identification of with which portion or part of the litigation the costs decision is meant to deal.

This requires a closer look at who made a claim for costs, and for what was that claim made. It also requires a closer consideration of any judicial endorsement relating to the pursuit of costs following the decision on the substantive claims in the case. And because of the judicial directions given in this

endorsement, it also requires a scrutiny of what is the precise claim in the notice of motion in which costs are being sought. [ 22 ] The pleadings in this ‘case’ included both an Application as well as a Notice of Motion to Change. They were eventually heard together. The Application was filed in May 2007 and continued on to the hearing which concluded in May 2010. This was a three year litigation. The Motion to Change was filed on June 11, 2009, less than one month before the first day of trial. It was heard contemporaneously with the Application in a hearing that concluded in May 2010.

This Motion to Change was less than one year in litigation. Both the Application and the Motion to Change were filed by the father. [ 23 ] The father simply ticked off a claim for costs in his Application. He did not even do this in his Motion to Change. However, this is of no consequence as his costs are not an issue. The issue in this decision involves costs claimed by the mother. She claimed these in her Answer. In fact, her claim in her Answer was for costs on a “substantial indemnity basis”. She also claimed costs in her Response to Motion to Change.

This claim for costs was sought “on a full recovery basis.” [ 24 ] The judicial decision in this case essentially gave directions to the parties on how their claims for costs were to be dealt with in the event that they wished to pursue these claims. [12] These directions involved the filing of a Notice of Motion “ setting out the specific claim being made.” The claim in the mother’s motion for costs was without any detail; it was simply for an order for costs against the Respondent father. [ 25 ] The written argument of the mother submitted with her motion materials, however, details her claim for costs.

She states at the outset that she seeks costs on a “full indemnity basis” [13] . Her alternative claim is for costs up to the date of her first offer, and on a “full recovery basis” thereafter to the completion of her submissions on this motion for costs. As a further alternative, she seeks an order for costs in a “fair and reasonable amount, as the court determines”. The father does not deny that the mother is entitled to an order of costs.

He argues in his written submissions that the order of costs should be in an amount that is “…fair and reasonable for the unsuccessful party [himself] to pay in the particular circumstances of the case …” [ 26 ] It is evident that the global amount of $102,700 claimed as costs by the mother represents full recovery of her costs from the inception of the proceeding. It includes her costs relating to both the Application of the father as well as to his Motion to Change. These costs were incurred over the approximately three year period during which this proceeding continued.

No order for costs was made, so far as the record discloses, of any step that had taken place during that three year continuum. That there were discrete “steps” over those three years is indisputable. Some steps that are quite obvious are motions brought by the mother (at Tabs 5 and 9 of the Application Record) for production, on consent of the father, of third party records, namely of the Children’s Aid Society of Algoma. So also is a motion (at Tab 5) by her, seeking involvement of the Office of the Children’s Lawyer. [ 27 ] Orders were made on all three motions.

However, no order for costs of those steps was ever made. The mother includes, in her present global claim, some costs that are referable to those steps. [ 28 ] Also included in her present claim for costs are some that relate to the several conferences that have taken place over the course of the three year litigation history. Conferences are mandated by Rules of the court and are imposed on all litigants. However, they, too, have been described as being discrete “steps” in the case [14] . There has been no order made as to costs of any conference held in this proceeding.

There is a qualitative difference between a step such as a motion and a step such as a conference that, in my view, affects the attribution of costs to such steps. [15] [ 29 ] The question of what portion of the overall litigation costs is properly the subject of the present claim for cost by the mother arises because of subrule 24(10) [16] which creates an obligation of awarding costs of each step in a proceeding “promptly after” each such step.

The consensus of the jurisprudence that has arisen on Rule 24 is that if costs of a “step” was not dealt with promptly after that step, then there are no costs of that step. More specifically, when costs are dealt with following the final trial or hearing that disposes of the case, it is too late for the costs of prior steps to be included in considering these costs. [17] [ 30 ] What portion, then, of the overall litigation costs of the mother fall within the purview of the court in the mother’s current claim for costs?

Is it only those costs circumscribed by the twenty one trial days that were required for the hearing of the case? That would be an unfair limitation. In a case that took three years to come to trial, there is a great deal of necessary litigation activity, all of which generates costs to the litigant.

While costs relating to some “steps” should be excluded specifically because of subrule 24(10), there are other parts of the litigation pathway that cannot easily be qualified as discrete “steps” but are recognized as necessary to bring a case to its ultimate conclusion. [18] [ 31 ] Accordingly, what this costs decision encompasses are the costs of the mother in the entire litigation, including (

a) all reasonable legal work preparatory to the final hearing, but excluding therefrom discrete steps for which either costs were ordered, or should have been dealt with, but were not; (

b) the final hearing which was the twenty one day trial; and (

c) the post-trial steps which principally comprise this motion for costs. [ 32 ] The next step in the process is to consider whether, when and what offers were made by the parties during the litigation. The reason for this is because subrule 18(14) [19] creates specific costs consequences tied directly to offers to settle. The “offer to settle” is given significant importance both in the Family Law Rules as well as in the jurisprudence that has developed following the implementation of these Rules. [20] There were three offers made. (

a) by the mother served August 22, 2008, the terms of which were that the father’s Application be dismissed with costs to the mother; (

b) by the mother served Sept 24, 2008, the terms of which were that the father’s application be dismissed with each party to pay their

own costs; and (

c) by the father dated October 14, 2008 and included within the settlement conference brief of the father for a settlement conference scheduled for October 29, 2008, the terms of which were that the prior order continue but that paternal access would resume the pattern of access that had subsisted under the prior order before the exercise of paternal access had stopped (subject to addition of one month of compensatory paternal access). [ 33 ] It would be fair to infer that the mother’s second offer superseded her first offer in terms of being more generous to the father.

However, both remained open to acceptance by the father from their respective dates of service. The mother’s offers complied with four of the five pre-requisites set out in subrule 18(14) as the first pre-requisite was not applicable. Her offers were made in August and September 2008, many months before the first day of trial. They did not expire by virtue of their own terms. They were not withdrawn. Nor was either accepted. Most importantly, after twenty one days of trial, the outcome for her was as favourable as both her offers and clearly more favourable than her second offer.

This triggers the consequence of becoming entitled to costs up to the date that her offer was served, and thereafter to costs on a full recovery basis. This phraseology suggests that the “costs” that apply to the period preceding the date of her offer are less than a “full recovery” basis. [ 34 ] This division in the scale of costs creates some difficulties in determining the quantum for these periods. For one thing, there is no measure or standard for “costs” that are not “full recovery” costs in the Family Law Rules . And even full recovery costs are not quantifiable according to some tariff or standard.

Generally, they are what are judicially determined based on the evidence provided to the court of what “full recovery” amounts to in the particular case as presented by the costs claimant. The exclusion of a Tariff of Costs in the Family Law Rules and the omission of a definition of “costs” and “full recovery costs” in the Rules is likely deliberate.

It reflects what some jurists consider the more appropriate approach to determination of costs in family matters than what was the practice before these Rules. [21] There is a de-emphasis on the traditional reliance upon "hours spent times hourly rates" when fixing costs. The Court of Appeal has stated that "fixing costs does not begin or end with the calculation of hours times rate". [22] [ 35 ] There is a judicial finding that trumps the lesser scale of costs and not only elevates it to the higher “full recovery” scale, but also requires that such costs be payable immediately.

This would be the case where the court found bad faith on the part of the party whom it was ordering to pay costs. [23] “Bad faith” is not defined in the Rules. However, it has been the subject of judicial comment [24] by more than one jurist. In the present case, bad faith was neither alleged nor argued. Nor do I find that the father acted in bad faith in this proceeding such that the award of costs should be subject to the requirements of subrule 24(8). [ 36 ] To recapitulate, the mother claimed costs of this proceeding and has pursued these.

The proceeding included both an Application and a Motion to Change, both started by the father. She was the successful party. The father was unsuccessful. There was no division of success. She is presumptively entitled to the costs of this case. She made an offer that met the requirements of subrule 18(14) and she is entitled to her costs from the date of her offer on a “full recovery” basis, unless there is an order otherwise.

Excluded from her award of costs are the motions at Tabs 4, 5 and 9 as costs of these should have been dealt with at the time the motions were dealt with. [ 37 ] One final and rather significant step in the determination of costs is the impact of subrule 24(11). [25] This subrule lists specific considerations that do not affect entitlement of a party to costs but rather impact on the quantum of those costs. These are specific except for clause (

f) which is a catch all phrased as “any other relevant matter”. [ 38 ] The father, in his submissions, conceded that he did not take issue with the time spent on the case by the mother’s lawyer, the hourly rate of her lawyer, or the expenses paid in litigating the case, all as set out in the mother’s evidence on this motion for costs. His lack of opposition does not automatically mean that the court must accept these. However, the mother’s evidence is well documented with receipts, computerized time dockets and explanations of where time was spent.

This is sufficient for the court to factor these into the determination of the amount of costs. [ 39 ] Reasonableness of behaviour of a party is a factor that can affect both entitlement to costs [26] as well as the amount of costs. Subrule 24(4) applies only to a successful party. Unreasonable behaviour can rebut the presumption of entitlement to costs of a party that was successful in the case (or step in the case). In the present case, I do not find that the mother was unreasonable in her conduct, either prior to or throughout the litigation.

Time constraints do not permit a detailed analysis of why I have arrived at this conclusion.

However, part of that analysis is comprehensively set out in my Reasons for Judgment provided earlier in this case. [27] In addition to the comments in those Reasons, there are other factors that the court must consider to decide reasonableness of a litigant’s conduct. [28] Examining these factors in the case of the mother, particularly with the acuity of hindsight, I find that her offers were reasonable and timely, and she was quite justified in not accepting the father’s offer. [ 40 ] As for her conduct as the custodial parent of the child, I do not find fault with what she did either prior to the start of this litigation, or throughout its course in the court.

The father attacked her from several fronts, but the two most relevant, in respect of her behaviour, were that she engaged in conduct which resulted in parental alienation of the child from the father, and that she provided a letter to his employer which resulted in his losing his status as ‘suspended with pay’, and ultimately in losing his employment altogether. I totally rejected the allegation of parental alienation on her part.

As for the letter in question, she was not the author of this letter, nor was it established at trial that she, herself, had provided this letter to the father’s employer, or that it was this letter that resulted in the changes to his employment status. In short, I do not find that the mother behaved unreasonably at all.

She went well out of her way in making efforts to repair the rift between the father and their daughter that was caused by his egregious conduct during one particular paternal access visit. [ 41 ] Reasonableness of conduct of a litigant is a factor that also applies to determination of quantum of costs. In this context, it is reasonableness of “each party’s behaviour in the case” that counts. I have little to fault the mother in her litigation conduct. She was forced to respond to claims made by the father in his application.

That she was right in doing so was confirmed by the ultimate dismissal of these claims after trial. Similarly, she was forced to defend against the claim of the father to vary sole custody from her to himself brought in his Motion to Change, as well as to his accompanying claim of maternal access being supervised. There is nothing from the

mother’s litigation conduct that adversely affects the quantum of costs that she would otherwise be entitled. [ 42 ] The father’s litigation conduct, on the other hand, was considerably more objectionable. There is some sympathy for a father whose access relationship with his daughter essentially withered and ultimately died. That he would take steps to resurrect their estranged relationship is understandable. However, the choices he made to do so were clearly unreasonable and resulted in the languishing of any judicial sympathy. There are several areas involved: (

a) Firstly, his unjustified attack on the mother alleging parental alienation on her part. This was evident from the start of the litigation and did not abate although it was not vociferously argued after all of the evidence had been heard. There was no factual basis for this. The father led no expert evidence to substantiate such conduct on the part of the mother. (

b) The father’s initial claims were in his Application and these were for relief to enforce the access to which he was already entitled under the existing court order from August 2003. However, he made an additional and significant claim in his Motion to Change. This was for variation of sole custody to himself. This was a monumental shift in his litigation strategy and fell in line with his allegations of parental alienation. This was a claim made two years after his application was started and less than one month before the first day of trial.

This claim was not withdrawn at any time throughout the twenty one days of trial evidence. It was a poor choice on his part to seek sole custody of a child whose primary caregiver had been her mother from birth, especially a child who clearly expressed that she did not want to have anything to do with him. This new claim was guaranteed to force the mother to defend. (

c) The father completely disregarded the position of the child’s legal representative from the Office of the Children’s Lawyer which urged the father to discontinue his pursuit of paternal access. This was conveyed in October 2008, long before the commencement of trial. (

d) The father recorded many telephone conversations with the child, and some with the mother, almost all of which originated from himself. He did this without their knowledge or consent. These surreptitious recordings were then tendered at trial as his evidence in support of the parental alienation he was alleging. None of these supported this allegation. In fact, they led to an inference that it was the father who was deepening the rift between himself and his daughter, and, at the same time, reducing any sympathy that the mother might have had for his plight to nil. (

e) The father was completely insensitive to the feelings of the child, would not listen to what she was saying to him very clearly and continuously pursued her to win back her affection despite her clear wish to have distance between them. His relentless pursuit often went beyond propriety. One particularly egregious example was going through her private and personal belongings in her desk at her school without her knowledge or consent. (

f) From a litigation standpoint, the father remained fixated on winning his case when he did not have the evidence to do so, and was facing litigation adversaries in both the mother and the child (through her OCL counsel) with considerably more evidentiary clout. He not only did not re-assess his case as the litigation progressed; he made the wrong choices in his litigation conduct.

This was even more so after the child disclosed that he had engaged in sexual misconduct with her during past access visits. [ 43 ] Accordingly, reasonableness of party behaviour as a factor in deciding the quantum of costs does not diminish those costs based on the mother’s behavior, and certainly does not based on the father’s behaviour. [ 44 ] I cannot say that the issues in this case were particularly complex or difficult. They were clearly important to the parties but were not unique in the universe of family litigation. [ 45 ] The remaining factor in subrule 24(11) is clause (

f) which permits the court to consider “any other relevant matter” in setting the amount of costs. In this case, the father has two such matters that he argues should factor into the determination of the amount of costs. [ 46 ] The first is that he was only seeking what was best for the child, primarily a restoration of the parent-child relationship that had persisted until the August 2006 incident at his cottage. It also included treatment by professionals to cure what he perceived as unhealthy attitude and behaviour on the part of the child which he ascribed to the mother’s parental alienation measures.

These ends may have been commendable but his means were certainly not. While motivation to litigate as he did may be relevant, it was not appropriate, particularly not so as the case progressed. This does not impact on quantum of costs. [ 47 ] The second matter that the father argues should temper the amount of costs awarded is the impact on him of the amount sought by the mother. He argues this would be “financial devastation” for him.

The objective of an award of costs, he maintains, is to fix an amount that is fair and reasonable for the unsuccessful party to pay, not an amount that is tied to the actual costs of the successful party. In support of this contention, he cites the case of Boucher [29] , a decision of the Ontario Court of Appeal. While tying what amount of costs are fair and reasonable to the unsuccessful party is certainly a consideration, it is not the only one and not the primary one. The court in Boucher was not dealing with a family case. It did not apply the family Law Rules.

It was dealing with the Rules of Civil Procedure which are quite different. Moreover, it dealt with judicial error of the trial judge in awarding an amount tantamount to full indemnity when that same judge had rejected full indemnity and had opted for partial indemnity. [ 48 ] The fact is that the mother is entitled to costs on a full recovery basis from approximately September 2008 when she made her offers to settle, unless I order otherwise. For the reasons set out above, there is no reason to order otherwise. The father has the burden to persuade the court that it should order otherwise.

His argument that the amount should be gauged according to his financial or other circumstances merits little weight in this particular case. In addition, I reject his suggestion that loss of his employment, and impairment of his ability to pay costs, can be laid at the feet of the mother.

Whatever was the reason for the termination of his employment, it was connected more to whatever he may have done than anything that she did. [ 49 ] The father has not provided the evidence on this motion to allow the court to conclude that he will be financially devastated by an award of cost of the magnitude sought by the mother. His evidence shows he has minimal income since 2011. He claims he lives on income from two rental properties he owns. However, that seems unlikely as one nets less than $2,000 annually and the other less than

$1,000 annually. On the other hand, he owns his own home. All three properties have some measure of owner’s equity, even on hisevidence. There is no good reason why his properties should remain outside the boundaries of assets available to satisfy an award ofcosts. Moreover, to lose these properties or some of them does not make him penniless. He is able bodied and has disclosed no reasonswhy he cannot find employment, although perhaps not with his former employer.

In short, the father’s argument based on the financialimpact on himself is not persuasive. [50] He also argues that his long term financial viability is not in the best interests of the child or of the state. These bald statementshave no evidentiary support. The child will soon be an adult. He states that he is seeking to reduce his child support obligations to her.Whether he keeps his real estate investments or not seems to have negligible practical effects on whether she will receive financialsupport from him.

In terms of the state, I am not sure to what the father is alluding other than a general societal preference that allcitizens be economically and financially sound. [51] In Serra v.

Serra[30], the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles: 1. to partially indemnify successful litigants for the cost of litigation; 2. to encourage settlement; and 3. to discourage and sanction inappropriate behavior by litigants. [52] The father is correct to suggest that the measure of a successful party’s costs should be one that is fair and reasonable and notcomplete indemnification of every expense incurred by such party.

However, “fair and reasonable” have to be assessed on the basis ofthe requirements set out in the Rules that apply to the litigation, and to the particular factual circumstances of the case including themanner in which the litigation of the case was carried out.

The mother’s “full recovery” of her costs from the date of her offer arereduced somewhat by reason of an excluded motion (tab 9), by reason of less than full recovery allowed for the preparation andattendance at conferences, and in light of the fact that her claim for an order for no paternal access was refused. [53] I conclude that the mother should have costs in this case quantified as follows: 1. From April 14, 2007 (service of Application) to August 22, 2008 (service of mother’s first offer) excluding costs relating to two motions (tabs 4,5) costs $15,000 2.

From August 22, 2008 to July 4, 2012 (date of decision) excluding costs of motion (Tab 9) costs $60,000 3. From July 4, 2012 , and thereafter to date $ 2,000 Sub Total $77,000 4. Expenses/Disbursements claimed $ 4,046 Total $81,046 [54] I am not inclined to fix a dollar amount for whatever GST might, by operation of any law, apply to this award of costs. Therewere no submissions on why an award of costs should include an amount for GST.

However, my belief is that if the mother, includingany assignee of the mother’s entitlement to her award of costs, is out of pocket the amount of GST properly payable on the amount of$81,046 that I propose to award as costs to the mother, that amount of GST should be added to and form part of total costs to be paid bythe father to the mother. Released: December 9, 2014 Signed: “Justice John Kukurin” [3] Talsky v Talsky (ON CA), [1973] 3 O.R. 827, 38 D.L.R. (3d) 343, 11 R.F.L. 226, [1973] O.J. No. 2099 (Ont.

C.A.)at paragraph 19 “In any event, however, since the paramount consideration in a custody matter is that of the children, the participation of

the adversaries is not that in ordinary litigation so that, except in very exceptional cases, costs should not follow the event. For thatreason I would allow the appellant no costs of the custody proceedings” [6] Husein v. Chatoor (2006), 2005 ONCJ 487 , 24 R.F.L. (6th) 274 (Spence J Ont. Ct. J.), at para. 30: [P]arties have anobligation to begin to assess their respective cases at the outset of the litigation - even before the litigation commences - and to make allreasonable efforts to settle. [8] R.24(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a

summary mannerwho, if anyone, is entitled to costs, and set the amount of costs. O. Reg. 114/99, r. 24(10). [9] Islam v. Rahman 2007 ONCA 622 , [2007] O.J. No. 3416 Ont C.A.) at paragraph 2. “…we accept the appellant'ssubmission that the trial judge erred in failing to exclude from the award of costs amounts claimed for steps taken in the case where noorder was made as to costs or where there was silence on the issue.” See also Ashton v. Zwirchowsky 2008 ONCJ 61 , [2008]O.J. No. 689 (Zisman Ont, CJ) “where no order as to costs has been made or the issue of costs was not addressed, then no costs shall beordered.

It is incumbent upon counsel for each party in relation to a particular step in the proceeding to raise the issue of costs with thejudge who dealt with that particular step in the proceeding.” [10] R. 24. Successful party presumed entitled to costs.—

(1) There is a presumption that a successful party is entitled to the costs ofa motion, enforcement, case or appeal. O. Reg. 114/99, r. 24(1). [11] Where success in a step is judicially determined to have been divided, subrule 24(6) permits the court to apportion costs in such amanner as it considers to be appropriate. The expectation is that not only the degree of relative success will be articulated but also thereasons underlying the decision for the split in success. Rule 24(6) provides: Divided success.— If success in a step in a caseis divided, the court may apportion costs as appropriate. O.

Reg. 114/99, r. 24(6). [12] The prefacing remarks to these directions were quite general and were set out in paragraph [85] of the Reasons: “ Withrespect to the claims of the parties for costs, if either party seeks costs, the following applies:” [16] Rule 24(10) Costs to be decided at each step.— Promptly after each step in the case, the judge or other person who dealt with thatstep shall decide in a

summary manner who, if anyone, is entitled to costs, and set the amount of costs. O. Reg. 114/99, r. 24(10). [18] See Houston v. Houston [2012] O.J. No. 75 (Ont Div Ct) at paragraph [16] in refering to subrule 24(10)