de Paiva v. Juca, 2016 ONCJ 257

COURT FILE NO. D90192/16 DATE: 2016-05-06 CITATION: de Paiva v. Juca , 2016 ONCJ 257 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) RENATA GUEDES de PAIVA ) ) ) DANA COHEN, ACTING IN PERSON ) APPLICANT ) ) - and - ) MARCELO RODRIGO KORMANN JUCA ) DANIEL SIMARD, for the RESPONDENT RESPONDENT ) ) ) ) ) ) HEARD: MAY 5, 2016 JUSTICE S.B.

SHERR COSTS ENDORSEMENT [ 1 ] The respondent (the father) seeks costs of $5,000 against the applicant (the mother) arising out of a temporary parenting motion, regarding their 3-year-old child (the child) that was heard on May 5, 2016. [ 2 ] The mother had moved to reduce the father’s existing overnight access to the child by one night every other weekend. She also moved to restrict the father from consuming alcohol while in a caregiving role for the child. She asked that the father not be permitted to take the child out on his boat without first undergoing alcohol urine testing at the start of each visit.

She also sought monitoring provisions, such as the father wearing a SCRAM anklet and blowing into a Breathalyzer at the start of visits.

[3] The court placed some restrictions on the father’s alcohol use, but not to the degree sought by the mother. It did not change thefather’s parenting time with the child. [4] The mother asks that no costs be ordered. [5] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 , [2009] O.J. 1905 (Ont.

C.A.) stated that modern costsrules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, toencourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflectwhat the court views is a fair and reasonable amount that should be paid by the unsuccessful party. [6] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) creates apresumption of costs in favour of the successful party.

Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe (ON SC), [2000] O.J. No. 330 (SCJ- Family Court). To determine whether a party has beensuccessful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson (ON SC), [2008] O.J. No. 1978 (SCJ). [7] Both parties made offers to settle. The father submitted that subrule 18 (14) applies to his offer to settle.

This subrule reads asfollows: COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER 18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and fullrecovery of costs from that date, if the following conditions are met: 1. If the offer relates to a motion, it is made at least one day before the motion date. 2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date. 3. The offer does not expire and is not withdrawn before the hearing starts. 4.

The offer is not accepted. 5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. [8] The father offered to maintain the existing parenting schedule. He also proposed not to consume alcohol for three months whileparenting the child. [9] If the father’s offer had stopped there, subrule 18 (14) would have applied. However the father also included in the offer to settleterms that the parties have interim joint custody of the child and that the mother also not consume alcohol while parenting the child forthree months. These terms were not ordered.

The term about the mother’s non-consumption of alcohol wasn’t even requested in thefather’s notice of motion or submissions. [10] The court finds that subrule 18 (14) does not apply to the father’s offer. [11] The court can still consider any offers to settle pursuant to subrule 18 (16). [12] The mother also made an offer to settle. She offered to reduce the father’s overnight access by one night on alternate weekendsand that he not consume any alcohol while parenting the child.

She did not seek to restrict the father from taking the child on his boat,provided that she could make announced or unannounced visits and request him to blow into a portable Breathalyzer device. [13] The court finds that there was divided success on the motion, but that overall the father was slightly more successful than themother. [14] The court did not make a temporary custody order.

It ordered primary residence of the child to the mother and maintained thesame parenting schedule. [15] The court found some merit to the mother’s concerns about the father’s alcohol use, but not to the degree that it was prepared togrant an absolute prohibition on his alcohol use or impose the monitoring restrictions sought by the mother. The court ordered that thefather could not operate a motor vehicle or boat with the child as a passenger within 12 hours of consuming alcohol. He could also notoperate the boat with the child alone. Someone else had to be present and be given a copy of the order.

Otherwise, the father wasrestricted to consuming 3 alcoholic drinks on any day he was parenting the child. [16] In making this decision, the court considered the factors set out in subrule 24 (11), which reads as follows:

(11) A person setting the amount of costs shall consider, (

a) the importance, complexity or difficulty of the issues; (

b) the reasonableness or unreasonableness of each party’s behaviour in the case; (

c) the lawyer’s rates; (

d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses,drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; (

e) expenses properly paid or payable; and (

f) any other relevant matter. [17] The case was important for the parties. The issues were not complex or legally difficult. [18] The parties acted reasonably. Both made offers to settle. The mother had a legitimate concern about the father’s use of alcohol.The father did not agree with the mother, but made a serious attempt to satisfy her concerns with his proposal. [19] The rates and time spent on the case by the father’s counsel were reasonable. [20] The court considered that the mother brought this motion because of her desire to protect the child.

If the father had not made hisoffer to settle, there likely would have been no order for costs. [21] The father served his offer to settle 6 days before the motion. The court is surprised that the motion did not settle at that point.The restrictions and reduction of parenting time sought by the mother, while made out of concern for the child, went too far. The fatherwill be awarded some costs from the date of his offer to settle. [22] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario (ONCA), [2004] O.J. No. 2634 (Ont.

C.A.) and Delellis v Delellis and Delellis (ON SC), [2005] O.J. No. 4345. Boththese cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at paragraph 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. [23] Taking into account all of these considerations, an order shall go that the mother shall pay the father’s costs fixed in the amountof $1,000, inclusive of fees, disbursements and H.S.T. Released: May 6, 2016 ________________________ Justice S.B. Sherr