Phan v. Lam, 2011 ONCJ 242

Toronto Registry No. DFO 10 10895 A4 DATE: 2011·IV·04 CITATION: Phan v. Lam, 2011 ONCJ 242 ONTARIO COURT OF JUSTICE BETWEEN: THI KHANH NGOC PHAN, Applicant, — AND — LONG DUC LAM, Respondent. Before Justice Ellen B.

Murray Reasons for Judgment released on 4 April 2011 CIVIL PROCEDURE — Costs — Jurisdiction — Reserving cost of pre-trial step for trial judge — In wake of motion for interimcustody, father had argued that, on any motion that deals with substantive issues in case (one that would be subject of trial, such ascustody), costs should routinely be reserved to trial judge, leaving motion judges to grant costs only on motions dealing with proceduralissues (such as disclosure) — According to father, “correctness” of litigant’s position on motion for interim relief would be best gaugedafter court had all evidence that would be received only at trial — Motion judge rejected father’s argument by noting that there was noovert provision in Family Law Rules that allowed costs to be reserved to trial judge (“costs in the cause”) — Indeed, subrule 24(10) wasadamant that costs be determined in

summary manner after each step in case by presiding judge — Judge did concede that

section 131 ofthe Courts of Justice Act might still confer discretionary power to order “costs in the cause”, especially in light of court’s obligationunder subrules 2(2) and 2(4) to deal with case “justly” — Nevertheless, family courts had to exercise of this discretion only inexceptional cases and had to avoid more relaxed approach in Rules of Civil Procedure — Father’s argument would devastatefundamental purposes of costs rules, particularly purpose of encouraging litigants into appropriate settlement-oriented behaviour early incase and discouraging and punishing inappropriate behaviour — It might also mean that costs of successful litigant on substantivemotion would go unpaid, as most cases are settled before trial and never come before trial judge — Motion judge refused to order “costsin the cause”.

STATUTES AND REGULATIONS CITED Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended],

section 131. Family Law Rules, O. Reg. 114/99 [as amended], subrule 2(2), subrule 2(4), subrule 14(20), rule 24, subrule 24(1), subrule 24(4),subrule 24(10) and clause 24(11)(b). Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [as amended], rule 57.03. CASES CITED Britt v. Britt, [2000] O.J. No. 5981, 2000 Cars​well​Ont 6215 (Ont. Fam. Ct.). Fong v. Chan, , 46 O.R. (3d) 330, 128 O.A.C. 2, 181 D.L.R. (4th) 614, [1999] O.J. No. 4600, 1999 Cars​well​Ont 3955(Ont. C.A.). Giang v. Le, , 129 A.C.W.S. (3d) 338, [2004] O.J. No. 569, [2004] O.T.C. 153, 2004 Cars​well​Ont 592 (Ont. Fam. Ct.). New v.

New, , 42 R.F.L. (6th) 301, [2007] O.J. No. 3766, 2007 Cars​well​Ont 6251 (Ont. S.C.). Silver v. Imax Corp., 2010 ONSC 4017, [2010] O.J. No. 3329, 2010 CarswellOnt 5663 (Ont. S.C.). AUTHORS AND WORKS CITED

Vogelsang, Henry, Brahm D. Siegel, Margaret McSorley and Glenda McLeod: McLeod’s Ontario Family Law Rules Annotated 2010 (Toronto: Thomson Carswell, 2010). Chung Calvin Huong ................................................................................. for the applicant mother Shawn M. Philbert .................................................................................... for the respondent father For previous proceedings, see Phan v. Lam , 2011 ONCJ 151 , 2011] O.J. No. 1388, 2011 Cars​well​Ont 2144 (Ont. C.J.), per Justice Ellen B. Murray. [ 1 ] JUSTICE E.B.

MURRAY:— On 8 March 2011, I released a decision on the respondent father’s motion for an order granting the parties joint custody and a 50-50 residence

schedule for their 3 ½-year-old son, Jadon. The applicant mother’s position was that she should have temporary custody and that the residence

schedule set out in the temporary “without prejudice” order established at the case conference should continue. I did not make the order requested by the father. My order differed from the “without prejudice” temporary order, in that it increased access by adding a mid-week visit and granted temporary custody to the mother with some significant restrictions on her custodial authority. [ 2 ] The mother now seeks costs of the motion of a full-recovery basis in an amount of $7,845.

The father submits that no costs should be ordered or that costs should be reserved to the trial judge. [ 3 ] I have considered all the factors set out in rule 24 of the Family Law Rules , O. Reg. 114/99, as amended, and am of the view that an order for costs should issue now, providing that the father pay the mother costs of the motion fixed in an amount of $1,000, payable within 30 days.

My reasons are set out below. 1: PURPOSE OF COSTS RULES [ 4 ] In determining costs, it is important to keep in mind the purpose for the costs rules: (1) to indemnify successful litigants for the cost of the litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by the litigants. [1] 2: SUCCESS [ 5 ] Subrule 24(1) provides that a successful party is presumptively entitled to costs of a step in the case. In this case, success was mixed, although the mother was more successful than the father.

She is entitled to a partial recovery of her costs, unless it is established that she was so “unreasonable” that she should be denied costs. 3: REASONABLENESS [ 6 ] Under the rules, “reasonableness” of a party’s litigation behaviour is a reason to deny a successful party costs — subrule 24(4) — or to in increase or decrease the quantum of costs — clause 24(11)( b ). [ 7 ] Each party’s litigation behaviour had an element of “unreasonableness”.

I say this because there is no evidence that either party was prepared to compromise his or her position on the major issues in this motion — custody and the child’s residential

schedule — to achieve a reasonable settlement. The mother failed to respond to the father’s offer or make an offer of her own. On the other hand, the terms of the father’s offer with respect to custody and residential

schedule was the same as his position on the motion. [ 8 ] The mother’s lawyer submits that the father’s “conduct” should be a factor that boosts the mother’s claim to full recovery of costs. The conduct that is referenced is the father’s non-attendance at the motion, despite previous plans noted at the time of scheduling of the motion to attend. The father’s lawyer argued the motion and he was fully briefed. In my view, this submission is without merit. It is a personal choice for a litigant represented by counsel to attend the argument of a motion or not.

The father’s non- attendance is not relevant to the determination of costs. [ 9 ] In my view, considering the fact that the father had some success on the motion and the failure of each party to make any real effort to settle the issues on the motion, the mother should have cost at a “partial recovery” level. I turn now to a consideration of factors related to the quantum of costs. 4: IMPORTANCE AND COMPLEXITY OF THE ISSUES [ 10 ] The issues of temporary custody and residential arrangements for a child are always important to parents and I have no doubt that they are important to Ms. Phan and Mr. Lam.

However, the issues are not complex.

5: LAWYER’S RATES [ 11 ] The mother’s lawyer claims costs based on the “discounted” rate of $200 per hour. The father’s lawyer did not challenge this rate and I accept that it is reasonable. 6: TIME PROPERLY SPENT ON THE MOTION [ 12 ] The mother’s lawyer’s claim for costs is based on 38.5 hours work. No bill of costs was submitted.

The absence of a bill of costs handicaps me in determining whether the work was properly spent on this step of the case (as opposed, for example, to the case conference or the commencement of the case) and whether the work done was reasonable and proportionate to the complexity of the issues in the motion. [2] [ 13 ] The mother’s lawyer reviewed the father’s motion and affidavit, prepared a 4-page responding affidavit and reviewed the reply affidavit. He did not prepare a factum.

He also prepared an affidavit purporting to “reply to the reply” affidavit, which in fact was a regurgitation of facts set out in the original affidavit; after hearing argument on the point, I excluded this second affidavit pursuant to subrule 14(20).

The time related to the preparation of that affidavit should not properly be taken into account in determining costs. [ 14 ] If I had allowed the mother full recovery of costs for the motion, I would calculate that amount on approximately 8 hours of work. 7: SHOULD COSTS BE RESERVED TO THE TRIAL JUDGE? [ 15 ] The father’s lawyer argues that, even if I find that the mother is entitled to costs, the costs in this case should be reserved to the trial judge, when “the issue of custody and access is finally determined ”. He refers to Silver v. Imax Corp. , 2010 ONSC 4017 , [2010] O.J.

No. 3329, 2010 CarswellOnt 5663 (Ont. S.C.), a case in which the court did reserve the costs of a motion to a trial judge, commenting that “the appropriateness of a party’s conduct in bringing the motion may not be apparent until the litigation is concluded”. That case was decided under the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, as amended.

Rule 57.03 provides that, on the hearing of a contested motion, the court shall fix the costs of the motion and order them to be paid within 30 days or, in exceptional cases, refer the costs to an assessment, “unless the court is satisfied that a different order would be more just”.

As the cases referenced by Justice Katherine M. van Rensburg in the Silver case illustrate, there are cases in which the court deciding a motion holds that an order of costs in the cause is “more just” because the issue on the motion will also be litigated at trial. [ 16 ] The authors of McLeod’s Ontario Family Law Rules Annotated 2010 (Toronto: Thomson Carswell, 2010), caution in their commentary on rule 24 that “any case . . . decided under the present Rules of Civil Procedure ought to be read with caution”. [3] That is because the approach in the Family Law Rules to awards of costs has significant differences from the approach in the Rules of Civil Procedure . [ 17 ] Subrule 24(10) of the Family Law Rules provides:

(10) Costs to be decided at each step.— Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a

summary manner who, if anyone, is entitled to costs, and set the amount of costs. There is no provision that permits costs to be reserved to the trial judge. I am of the view that, despite the words of subrule 24(10), in the light of the court’s obligation under subrules 2(2) and 2(4) to deal with case “justly”, there is still discretion under

section 131 of the Courts of Justice Act , R.S.O. 1990, c. C-43, as amended, to make an order for costs in the cause in the exceptional case. [4] If such an order is made, then subrule 24(10) still requires the court to specify the amount of costs and to whom it will be payable ( e.g. , to the party who is successful at trial on the issue of custody and the child’s residential schedule). [5] [ 18 ] Although the option of reserving costs to trial can be exercised, that does not mean that it should. It should not be exercised in this case.

The respondent father’s argument amounts to the submission that, on any motion in which temporary custody or access (or any matter that will be litigated at trial) is in issue, costs should be in the cause. That submission rests on the premise that the “correctness” of a party’s position on a temporary motion is best gauged after the court has all the evidence that would be received at a trial. [ 19 ] Such an approach flies in the face of the purpose of the costs rules. Reserving costs until the end of a case does not encourage appropriate settlement-oriented behaviour early in a case.

Such an approach ignores the terms of subrule 24(10) ; on the basis of the premise of this argument, costs would routinely be reserved on a motion that deals with the substantive issues in a case ( i.e. , the issues that would be the subject of a trial) and would only be granted on motions involving procedural issues, such as disclosure.

Such an approach would likely mean that the costs of a successful litigant on a motion would go unpaid, as most cases are settled before a trial. [ 20 ] For these reasons, I have decided that the costs related to this motion should be determined by me now, and not reserved until trial.