2019 ONCJ 73, 2019 ONCJ 73

CITATION : Woods v. Shaw , 2019 ONCJ 73 DATE : February 11, 2019 COURT FILE : 376/18 Ontario Court of Justice at 7755 Hurontario Street, Brampton, Ontario Endorsement Justice L.S.

Parent (Court office address) Date Applicant: Shawn Richard Woods Present February 11, 2019 Counsel: Geoffrey Wells Present Duty Counsel: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Present Respondent: Nicole Samantha Shaw Present Counsel: Karen Cunningham Present Duty Counsel: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Present Order to go in accordance with minutes of settlement or consent filed. _____________________ _______________________________________________________________ COST ENDORSEMENT Overview [ 1 ] On November 26 th , 2018, I released my decision following the hearing, on October 23 rd , 2018, of a motion brought by Mr.

Woods for unsupervised and increased access to his children. [ 2 ] The parties were invited to provide written submissions on costs for this motion and the case conference held on August 16 th , 2018, if they were unable to resolve the issue. [ 3 ] Counsel, on behalf of Mr. Woods, provided his submissions and counsel for Ms. Shaw responded. A reply was also received on behalf of Mr. Woods. [ 4 ] All costs submissions were received within the timetable ordered in my reasons for judgment dated November 26 th , 2018. [ 5 ] Counsel on behalf of Mr.

Woods seeks an order granting costs in the amount of $15,000.00, inclusive of disbursements and HST. [ 6 ] Counsel on behalf of Ms. Shaw opposes the request for costs submitted on behalf of Mr. Woods. Counsel submits that each party should bear their own costs or in the alternative, that costs be reserved to the trial judge. Legislative Framework [ 7 ] Costs in family law matters are governed by

Section 131 of the Courts of Justice Act , R.S.O. 1990, c. C-43 and Rule 24 of the

Family Law Rules , O. Reg. 114/99 . These sections clearly establish that the determination of costs in family law proceedings is within the discretion of the court. [ 8 ] Under Rule 24 (1) of the FLR , there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. [ 9 ] Under Rule 18 (14) and (16) of the FLR , offers to settle are to be considered in the determination of costs.

Specifically, these subrules require the court to review and consider offers to settle in light of the exercise in discretion regarding the amount, the level and when any award is to be satisfied. [ 10 ] Rule 24 (5) states that in deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (

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 failed to accept. [ 11 ] Rule 24 (12) states that, in determining the issue of costs, the court shall consider the following factors: (

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 fess, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (

b) Any other relevant matter. [ 12 ] Submissions filed on behalf of both parties reference this framework in advancing their positions regarding costs. Analysis [ 13 ] 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 that cases are dealt with justly under subrule 2 (2) of the FLR. See: Mattina v. Mattina, 2018 ONCA 867 Rule 24(1) – Successful Party and Rule 18 – Offers to Settle [14] In Berta v. Berta, 2016 ONCA 918, the Court of Appeal stated at para. 94: A successful party in a family law case is presumptively entitled to costs.

An award of costs, however, is subject to the factors listed in r.24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and thereasonableness of the costs sought by the successful party: M.(A.C.), at paras. 40-43. [15] To determine whether a party has been successful, the court should take into account how the order compares to any settlementoffers that were made. Lawson v. Lawson, (ON SC), [2008] O.J. No. 1978 (SCJ). [16] Counsel for Mr. Woods references two offers to settle in his submissions.

These offers are dated July 10th, 2018 and August 17th,2018. Copies of these offers have been included in the submissions filed on behalf of Mr. Woods. [17] Counsel for Ms. Shaw attached three offers to settle in her submissions. These offers are dated September 26th, 2018, October 15th, 2018 and October 22nd, 2018. [18] There is no dispute that the offers submitted by both counsel satisfy the criteria of Rule 18 so as to be considered offers to settlewithin the rule. [19] Submissions filed on behalf of Mr. Woods acknowledges that the offers do not trigger the cost consequences as outlined in Rule18(14) FLR.

Submissions filed on behalf of Ms. Shaw did not reference these settlement offers. [20] However, the court, in accordance with Rule 18(16), can take into account any written offer to settle, the date it was made and itsterms, even if subrule 18(14) does not apply, when exercising its discretion over costs. It is on this basis that counsel for Mr. Woods references the offers to settle as well as correspondence dated June 25th, 2018. See: C.A.M. v. D.M., [2003] 18880 (ON CA) [21] Counsel for Ms. Shaw submits that success was divided between the parties. Counsel submits that Ms.

Shaw was successful onthe issues of frequency of mid-week visits, the commencement date of unsupervised visits, Christmas access, access exchange locationand communication method to be used by the parties. [22] After a review of the submissions and the motion materials, I find that Mr. Woods was the more successful party and thereforehe is entitled to rely on the presumption in Rule 24(1) FLR. [23] Although Mr.

Woods was not successful to the extent that the order requested in his Notice of Motion was not granted, I find thathe was successful on the key issue before the court, namely the commencement of unsupervised visits with his children. [24] As stated by Pazaratz, J. at paragraph 66 of his decision in Jackson v. Mayerle, 2016 ONSC 1556, “Most family cases havemultiple issues. They are not equally important, time-consuming or expensive to determine.” Rule 24(12) Factors [25] Rule 24 FLR requires the court to determine costs through the lens of “reasonableness and proportionality”.

This mandatoryapproach requires the court to consider the primary objective of Rule 2(2) FLR, namely that cases are dealt with justly. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711 , [2012] O.J. No. 5404 (Ont. C.J.); Lawrence v. Lawrence, 2017 ONCJ431; and Beaver v. Hill, 2018 ONCA 840. [26] In ensuring that matters before the court are dealt with justly, the court is required to assess costs recognizing that family lawproceedings and any costs flowing from these proceedings, as determined in accordance with the Family Law Rules, are to “…embody a

philosophy peculiar to a lawsuit that involves a family.” See: Frick v. Frick, 2016 ONCA 799, at para. 11. [27] Although access to justice is a right, court proceedings are not intended to give litigants a forum for carrying on in whatevermanner they may choose, oblivious to the impact of that conduct on the other side and ignorant to the costs of the litigation process. See: Lawrence, at para. 54. [28] In Boucher v. Public Accountants Council (Ontario) (2004), (ON CA), 71 O.R. (3d) 291 (Ont.

C.A.), theOntario Court of Appeal indicated that a costs award should be a "fair and reasonable amount that should be paid by the unsuccessfulparties rather than any exact measure of the actual costs of the successful litigant.” [29] Measures of a "fair and reasonable amount" include: (

a) that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See:Lupien v. Carmichael, 2017 ONSC 2929, at para. 9; and/or (

b) by looking at what the unsuccessful party paid for their own legal fees. See: Goryn v. Neisner, 2015 CarswellOnt 8562, and Mohr v.Sweeney, 2016 ONSC 3238 [30] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and theoutcome: Boucher; and Lawrence, at para. 64; Delellis v. Delellis and Delellis, (ON SC), [2005] O.J.

No. 4345. [31] 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 thetraditional reliance upon "hours spent times hourly rates" when fixing costs...Costs must be proportional to the amount in issue and theoutcome.

The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particularcircumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. [32] In considering the factors under Rule 24(12), I make the following deter​minations:

a) Bad Faith/Unreasonableness Although claimed by both parties, I do not find that either party behaved unreasonably and/or in bad faith. Opposing the request of theother party does not, in my view, automatically result in an unreasonable position. The evidence presented before me did not support that an order be granted in accordance with Ms. Shaw’s request, or Mr. Woods’request as presented in their respective notices of motions.

b) Rates and Time Spent Mr. Woods’ counsel indicates that he was called in 2003 and that his hourly rate is $435.00. Counsel has submitted a Bill of Costs which indicates that he spent 33.00 hours on this matter for the period between June 5th, 2018 and October 23rd, 2018. The Bill of Costs alsodetails 5.5 hours of work completed by a law clerk at the hourly rate of $190.00. Ms. Shaw’s counsel indicates that she was called in 1996 and that her hourly rate is $425.00.

Counsel has submitted a Bill of Costs which indicates that she spent 24.10 hours on this matter for the period between October 1st, 2018 and December 4th, 2018. The Bill of Costs also details 15.10 hours of work completed by counsel with a year of call of 2017 at the hourly rate of $250.00; and1.80 hours of work completed by two law clerks at the hourly rate of $125.00. I find the hourly rate of each counsel to be reasonable given their years of experience.

I further accept that hourly rate of the law clerks,as submitted, are reasonable given that both counsel billed this time and there is not a significant disparity in the hourly rates submitted. A review of the Bill of Costs submitted on behalf of Mr. Woods details time spent that are outside of the scope of cost considerations for the case conference held on August 16th, 2018 and the motion held on October 23rd, 2018. Specifically the time docketed prior to theseevents, I find, are not to be determined at this point. Further, I do not find that, given Mr.

Woods’ counsel’s level of experience and the limited issues before the court, the 21.0 hourssubmitted, which include time spent by counsel and his law clerk, are reasonable and proportionate. I make the same finding, given Ms. Shaw’s counsel’s level of experience, regarding her 28.70 hours submitted.

c) Offers to Settle The Family Law Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, ajudge may increase or decrease what would otherwise be the appropriate quantum of costs awarded, although there is no obligation tomake an offer to settle.

See: Beaver v. Hill, 2018 ONCA 840. I have therefore reviewed all offers exchanged between the parties and have taken into consideration this factor in my determination ofcosts to be awarded.

d) Other Expenses I find that the disbursements claimed on behalf of both parties are reasonable given the matter before the court. However, it is unclearfrom my review of the Bill of Costs submitted on behalf of Mr. Woods if the expenses claimed are limited to the case conference and themotion. I have therefore considered this in the exercise of my discretion.

e) Other Relevant Factors - Ability to Pay The issue of ability to pay was raised on behalf of Ms. Shaw. Counsel submits that her client’s financial circumstances coupled with the fact that she is supporting the parties’ children, do not permither to pay costs as requested by Mr. Woods. I adopt the comments of Madam Justice Heather McGee in Mohr v.

Sweeney, 2016 ONSC 3238 , 2016, where she writes,"those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings." However, I am also of the view that the financial situation of the parties can be taken into account in setting the amount of the costsaward either under Rule 24 or Rule 18. As stated by the Ontario Court of Appeal in C.A.M. v. D.M.: Thus, while subrule 24(11) enumerates a number of factors that must be taken into account, the person setting the amount of the costs isdirected to take into account "any other relevant matter".

I agree with Aston J. in Sims-Howarth, at para. 4, that the "Family LawRules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs". In myview, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent.See Biant, at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (QL) (S.C.J.), at para. 11.

In fixing costs, the courts cannot ignorethe best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affectthe interests of the child. [page195] Order [33] Taking into account all of the considerations noted above, including my determination that Mr. Woods was the more successfulparty as well as what is a reasonable amount for Ms. Shaw to pay, I order Ms. Shaw to pay to Mr.

Woods the sum of $7,500.00, inclusiveof disbursements and HST, by certified cheque or money order payable to “MacDonald & Partners, Barrister and Solicitor in trust”. [34] These costs are fixed in relation to the motion heard on October 23rd, 2018. [35] I do not find that costs should be ordered for the case conference on August 26th, 2018 given that this is a mandatory event underthe FLR and a meaningful conference was held. Accordingly, I find that each party is to bear their own costs of the case conference. [36] These costs ordered are to be satisfied as follows: (

a) A payment of $3,000.00 by March 15th, 2019; and (

b) A payment of $2,250.00 on April 15th, 2019 and May 15th, 2019; [37] Counsel for Mr. Woods shall prepare this order for approval by counsel for Ms. Shaw. [38] The matter will proceed as scheduled on April 18th, 2019 for a combined settlement/Trial Management conference at 10:00 a.m. in Courtroom #210 under the terms set out in my endorsement dated January 24th, 2019. [39] I have requested that my judicial assistant forward this endorsement to counsel. ____________________ Justice L.S. Parent