Downman v. Wilson, 2012 ONCJ 766

COURT FILE No.: Halton 448/12 DATE: 2012-11-12 Citation: Downman v. Wilson , 2012 ONCJ 766 ONTARIO COURT OF JUSTICE BETWEEN: CAROLINE TRACY DOWNMAN Applicant — AND — MITCHELL BARRY WILSON Respondent Endorsement Regarding Costs Before Justice Sheilagh O’Connell Katherine N. Iima......................................................................................... for the applicant Christopher R.

Martin .............................................................................. for the respondent O’CONNELL J.: INTRODUCTION : [ 1 ] On August 30, 2012, following the hearing of an urgent motion, I made the following order: 1. “On a without prejudice basis, subject to the investigation of the Office of the Children’s Lawyer, the child shall be registered at Pilgrimwood Public School in Oakville, Ontario on September 4, 2012; 2.

The parenting arrangement shall continue pending a full investigation of the Office of the Children’s Lawyer and the Court refers this matter to the Office of the Children’s Lawyer; 3. This Order shall be reviewed on Monday, December 17, 2012 at 11:00 a.m.” [ 2 ] The applicant is seeking her legal costs for the motion on a full recovery basis in the amount of $5,171.17. Her offer to settle the motion and a bill of costs are attached to the written cost submissions. The respondent submits that there should be no order for costs because success on the motion was divided.

BACKGROUND FACTS: [ 3 ] The parties became involved in an intimate relationship and started cohabiting together in August of 2008. The applicant resides in Oakville and prior to their cohabitation, the respondent resided in Hamilton. The respondent moved into the applicant’s home in Oakville when they started living together. There is one child of their relationship, namely Jamie Suzanne Wilson, born September 29, 2008 (“Jamie”). [ 4 ] The parties separated in June of 2010 when Jamie was two years old. When the parties separated, the respondent returned to Hamilton.

After the parties separated, they entered into a shared parenting arrangement wherein Jamie lived equally at her mother’s residence in Oakville and her father’s residence in Hamilton. Jamie is now four years old and started junior kindergarten in 2012. A dispute arose between the parties regarding what school Jamie would attend in the fall of 2011.

The mother wanted Jamie to attend a school in Oakville close to her home and the father wanted Jamie to attend a school in Hamilton close to his home. [ 5 ] Both parties brought urgent motions for custody and access and for an order that the child be registered to start kindergarten on September 4, 2012 at the different schools in their respective school districts. The applicant mother sought an order, among other relief, that Jamie be registered at Pilgrimwood Public School, that she be granted temporary sole custody or alternatively joint custody with the child’s principle residence with her.

The respondent father also sought an order for temporary sole custody of the child, that the child’s primary residence be with him and that the child be registered for kindergarten at Eastmount Park Elementary

School in his district. Alternatively, the father sought an order for temporary shared custody of the child. [ 6 ] At the outset of the motion, both parties agreed to the appointment of the Office of the Children’s Lawyer to conduct a social work investigation and report of the issues of custody and access pursuant to

section 112 of the Courts of Justice Act . I advised the parties that the only urgent issue before me was the choice of the child’s school, which needed to be decided that day as the child was starting school next week. I was not prepared to address changes to the existing parenting schedule, which had been in place for a significant period of time, pending the appointment of the Children’s Lawyer.

The parties agreed that their respective motions would only proceed on this issue. [ 7 ] After hearing the respective motions and for oral reasons delivered, I determined that it would be in Jamie’s best interests to attend school in Oakville closer to her mother’s residence. Jamie was born in Oakville and lived there exclusively until the parties separated. Prior to the separation, the evidence established that the mother was Jamie’s primary caregiver.

Further, in my view, based on the parties’ respective work schedules, it would be easier for the mother rather than the father to facilitate Jamie’s attendance at school as well as the current parenting arrangements. I did however, make the order on a without prejudice basis, pending the full investigation and report of the Office of the Children’s Lawyer. THE LAW : [ 8 ] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows: “ 24.

(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(4) Despite subrule (1), a successful party who has behaved unreasonably during 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.

(5) 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.

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

(10) 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.” [ 9 ] Rule 24 (11) provides a further list of factors that a court should consider in dealing with costs: “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.” O. Reg. 114/99, r. 24 (11) . [ 10 ] Rules 18(14) and 18(16) of the Family Law Rules , which address the cost consequences of offers to settle, provide the following: “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 full recovery 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. O. Reg. 114/99, r. 18 (14). 18

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made andits terms, even if subrule (14) does not apply.” O. Reg. 114/99, r. 18 (16). [11] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J.

No. 1905, 2009 CarswellOnt 2475, at paragraph [8],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 behaviour by litigants. [12] Rule 24 created a new framework for determining costs in family law proceedings.

The presumptive nature of Rule 24 hassignificantly curtailed the court’s discretion regarding costs in family law proceedings and absent compelling circumstances or theexceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in C.A.M. v. D.M.(2003) (ON CA), 67 O.R. (3d) 181 held that while the Rules have not completely removed a judge’s discretion, theRules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs.

Courts must not only decideliability for costs, but also the amount of those costs. [13] However, the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291,188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 CarswellOnt 2521 (Ont.

C.A.), the award of costs must be fixed in anamount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actualcosts to the successful litigant. ANALYSIS: [14] The applicant was clearly the successful party regarding the issue of which school the child should go to in the fall of2012. In my view, success was not divided on this motion as that was the only issue before me to decide. I declined to address theparenting

schedule until the Office of the Children’s Lawyer completed its investigation of the issues of custody and access. The motherrequested the appointment of the Children’s Lawyer in her notice of motion, dated August 22, 2012, and the father consented to thisrelief at the hearing of the motion. [15] I do not agree with the father’s submission that he was successful in his claims that there be no order with respect toprimary residence and that the current residential

schedule should continue. I specifically declined to rule on these issues and adjournedthese issues pending the outcome of the Children’s Lawyer’s investigation. Further, even if I accept the father’s submission that successwas divided, which I do not, the time spent on this motion was almost entirely focused on the school issue. Rule 24 (6) of the FamilyLaw Rules does not provide that there shall be no costs if success is divided, but rather that costs should be apportioned as appropriate.

The majority of the costs were spent on the issue of which school the child should attend, and the mother was undoubtedly successful onthis issue. [16] However, the mother is not eligible for full recovery of costs. The mother’ s Offer to Settle, as Ms Iima concedes in herwritten submissions, did propose a change in the access schedule, which I declined to rule on at this stage in the proceeding. Further, theterms of the offer to settle were not severable. The mother’s offer to settle was therefore not as favourable or more favourable than thecourt’s ruling.

The offer also expired prior to the start of the hearing. As a result, the offer to settle does meet the criteria for fullrecovery of costs set out under Rule 18(14) of the Rules. [17] Notwithstanding the above deficiencies, it has been held that under the modern framework for costs set out in the FamilyLaw Rules, the preferable approach is to have costs generally approach full recovery, so long as the successful party has behavedreasonably and the costs claimed are proportional to the issues and the results.

Where the Rules leave a discretion to the judge on howmuch to award, it is reasonable to look at the full amount claimed, the reasonableness of a party's behaviour, the extent to which there isdivided success, and to test the amount against the factors listed in Rule 24 (11) in deciding whether the costs awarded should besubstantial (about 80%) or full recovery or somewhere in between. See Macdonald-Sauer v. Sauer [2010] O.J. 1373 (S.C.J.); Biant v.Sagoo (ON SC), [2001] O.J.

No. 3693 (S.C.J.) [18] In considering the factors under Rule 24 (11), there is no question that the issue to be determined was very important toboth of the parties. The applicant attempted to settle the issue with the respondent before commencing this litigation, as is evident fromthe lengthy correspondence between the parties set out in the motion materials. Ms Iima is a family law practitioner whose hourly rate isset at $250.00, which is a reasonable hourly rate for a lawyer of her experience.

The total number of hours claimed was not excessiveand the time spent on the case was reasonable. [19] In my view, in considering all of the above factors and the circumstances of this case, including the importance of theissue for both parties, a cost award of $3,000.00 is appropriate and reasonable. ORDER: [20] For the reasons above, I therefore make the following order:

[ 21 ] The respondent shall pay to the applicant costs in the amount of $3,000.00, inclusive of disbursements and taxes. These costs to be paid no later than 30 days from today’s date. ___________________________ Justice Sheilagh O’Connell DATE: December 11, 2012