2013 ONCJ 501, 2013 ONCJ 501

COURT FILE NO.: 156/13 DATE : September 12, 2013 Citation : Clark v. Collymore , 2013 ONCJ 501 ONTARIO COURT OF JUSTICE RE: CRYSTAL CLARK –Applicant and BRIAN MATTHEW COLLYMORE – Respondent BEFORE: Justice Roselyn Zisman COUNSEL: Catharine A. Haber for the Applicant Erika R .Jacobs for the Respondent HEARD ON: By written submissions C O S T S E N D O R S E M E N T INTRODUCTION [ 1 ] This decision relates to costs of a temporary motion by the applicant (“mother”) for custody of the parties’ child, Ava Michelle Collymore, born December 16, 2011 and for child support.

BACKGROUND [ 2 ] The motion by the mother was originally before the court on March 22, 2013 as an urgent motion to be heard prior to a case conference. The respondent (“father”) and his counsel were present and requested an adjournment to prepare responding materials. The motion was adjourned to April 24, 2013. [ 3 ] But as both parties had counsel present and there was an urgent need to put some parenting

schedule in place, I requested counsel attempt to negotiate a

schedule until the return date of the motion. A parenting

schedule was complicated due to the father’s employment as a police officer which requires that he work on 5-week

schedule with different shifts and that from time to time requires him to attend court or work overtime. [ 4 ] Despite the case being held down for a considerable length of time counsel were unable to even agree on a

schedule for about a month until the return date. Accordingly, I reviewed both parties’ proposals and made a without prejudice temporary order on the basis that it was in the child’s best interests to have a

schedule in place pending a full hearing. The order provided that the child remain with the mother and attend daycare, that the father have the child in his care any day from 3:00 p.m. to 6:00 p.m. when he was available, one full day during the week and on any Saturday or Sunday when he is not working. No overnight access was ordered. [ 5 ] On April 24, 2013 instead of proceeding with the return of the motion, both counsel filed case conference briefs and a case conference was held. To the credit of the parties and counsel, they were able to agree to a further

schedule for the following month and agreed that the matter return for a continued case conference on June 18, 2013.

[ 6 ] On June 18, 2013 the case conference was continued and the endorsement states that the outstanding issues were the parenting

schedule and the appointment of the Office of the Children's Lawyer. It was suggested that the parties attend mediation. The proceeding was adjourned to July 24 th for a motion on these issues. [ 7 ] The motion was argued on July 24 th . The mother sought temporary custody, access in accordance with a specified schedule, child support including both table child support and a contribution to

section 7 expenses, including daycare. The father opposed any order for custody on the basis that there was no need for an order at this stage of the proceedings and submitted that he pay child support based on his anticipated income. The father’s cross-motion requested a specified access

schedule that provided the child be in his care for 18 out of 35 days with 4 overnights during the 5-week schedule.

The father also sought the appointment of the Office of the Children's Lawyer that was opposed by the mother. [ 8 ] After hearing submissions, I gave brief oral reasons and endorsed the record to provide that, on a temporary basis, the mother be granted custody, that the father be granted specified day access with no overnights at this time, that the father pay child support, as of the date of the application, based on his 2012 income of $120,000 and pay his proportionate share of the daycare expenses with credit for any monies already paid.

There were also some provisions for disclosure, provisions to permit the father to obtain information about the child and to assist the parties in communication. I declined to order the appointment of the Office of the Children's Lawyer. POSITION OF THE PARTIES [ 9 ] Ms Haber, counsel for the mother, seeks costs of her motion originally returnable on March 22, 2013 and then adjourned to and argued on July 24, 2013 and costs for responding to the father’s motion returnable on the same date.

She seeks costs on a partial indemnity basis of $10,964.37 inclusive of fees, disbursements and applicable taxes. [ 10 ] She submits that the mother was substantially successful with respect to the main issues namely, custody and access and was successful in obtaining child support. She was also successful in responding to the father’s motion for the appointment of the Office of the Children's Lawyer that was not granted. [ 11 ] It is further submitted that the father acted unreasonably in failing to make an offer to settle.

The mother served an offer to settle the motion on July 18 th that provided the mother have interim custody with provisions regarding access that arguably were more generous than the order made. The offer to settle provided the father have access on either Saturday or Sunday on alternate weekends and 2 full days of weekday access that are not consecutive.

Counsel concedes that her offer to settle required the 2 weekdays not be consecutive and that the father needed to provide advance notice as to which days he intended to exercise access; whereas, the order made provided for specified consecutive weekday access based on the father’s schedule. Counsel submits that at the very least the mother’s offer was not “worse” than the order made.

The mother’s offer to settle did not refer to child support. [ 12 ] Ms Jacobs, counsel for the father, submits that no costs should be ordered or in the alternative, no costs prior to the offer to settle and that the partial indemnity rate claimed by the mother’s counsel is inappropriate. She submits that while Family Law Rule 24 has circumscribed the court’s discretion to make an order of costs, there remains discretion to make an order of no costs. [ 13 ] It is submitted that both parties have well-paying jobs and thereby both can afford to pay their own legal costs.

It is further submitted that an order for costs would cause a financial hardship for the father as he has been ordered to pay child support and his proportionate share of the daycare expenses based on his previous year’s salary of $120,000 although he estimates that that he will only earn $110,000 this year as the availability of overtime has been reduced. [ 14 ] It is submitted that although the father did not make an offer to settle, the relief requested in his Notice of Motion was in itself reasonable as he was not willing to surrender custody of his child and he requested 4 overnight visits in a 5-week

schedule (35 days) and only 3 weekend days out of 10 for his access visits. It is submitted that the mother’s access

schedule was not workable based on the father’s work schedule. [ 15 ] It is further submitted that the father acted reasonably in requesting the appointment of the Office of the Children's Lawyer as at the 2 prior case conferences I had expressed the view that the court would agree to the appointment of the Office of the Children's Lawyer if the parties consented but would not order such appointment at a case conference if the mother did not agree. It is submitted that I indicated that the mother would need a very good reason for the Office of the Children's Lawyer not to be appointed.

Based on these statements the father requested the appointment of the Office of the Children's Lawyer and no new compelling evidence was presented at the motion but the court declined in any event to appoint the Office of the Children's Lawyer. General applicable principles [ 16 ] Rule 24 of the Family Law Rules, O. Reg. 114/99 provides guidance on costs in a family law context. Rule 24 (1) sets out the basic assumption that a successful party is entitled to costs.

This provision still permits a court broad discretion in determining if costs should be paid, by whom and the amount of such costs. [ 17 ] Rule 24 (11) provides a list of factors 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 behavior in the case; c. the lawyer’s rates; d. the time properly spent on the case, including conversations between the lawyer and the party, 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. [18] Subsection (

b) of Rule 24(11) relates to the reasonableness of each party’s behavior in a case. In determining if a party has actedreasonably Rule 24 (5) provides that : DECISION ON REASONABLENESS

(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 tosettle; (

b) the reasonableness of any offer the party made; and (

c) any offer the party withdrew or failed to accept. [19] Offers to settle are an essential part of family litigation. The parties and counsel have a positive obligation to conduct their casesto ensure that the primary objective of the Family Law Rule 2 (2) is met that is, to deal with cases justly. This includes takingappropriate steps to save time and expenses, per Rule 2 (3). Offers to settle play an integral role in saving time and expenses bypromoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in anyconsideration of the issue of costs.

In my view it is unreasonable behavior for a party not to make an offer to settle.[1] [20] The consequences of an offer to settle are set out in Family Law Rules 18(14) as follows: COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was servedand 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 orhearing 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. [21] In Serra v. Serra 2009 ONCA 395 , [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costsrules 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. [22] The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointedout in Boucher v.

Public Council (Ontario) (2004), (ON CA), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont.C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particularproceedings rather than an exact measure of actual costs to the successful litigant. ANALYSIS [23] In determining the issue of costs the overriding principle is reasonableness. In considering that issue offers to settle play a centralrole. [24] As is clear from the provisions of the Family Law Rule 18 (16) the court is to consider all offers to settle:

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it wasmade and its terms, even if subrule (14) does not apply. [25] Further, as set out in Rule 24 (5) (

b) in considering if a party acted reasonably or unreasonably, the court must examine thereasonableness of any offer to settle. [26] In this case, the mother served an offer to settle that complies with the provisions of Rule 18 on the most contentious issues in the

case, namely custody and access. If the court determines that the order made is as favourable as or more favourable than the order granted, the mother is assumed to be entitled to full recovery of costs from the date the offer to settle was served. [ 27 ] The father did not serve any offer to settle and attempts to rely on this Notice of Motion as his offer to settle. I have not been provided with any case law that would suggest that a party can rely on the relief requested in a Notice of Motion as meeting the requirements of an offer to settle.

If counsel wishes to rely on the relief requested in a Notice of Motion, then at a minimum a letter could have been written that indicates that the Notice of Motion should be considered the party’s offer to settle It is further submitted that the relief requested in the father’s Notice of Motion was reasonable. However, the entire purpose of submitting an offer to settle is to require the opposing party to take a hard look at their position as they are on notice that there will be a cost consequence if the offer to settle is not accepted.

If the father and his counsel felt the mother’s offer to settle was not reasonable or workable with the father’s work schedule, in my view, it was incumbent upon them to serve their own offer to settle or face the resultant cost consequences. [ 28 ] I therefore find that the father acted unreasonably in not making an offer to settle especially given the highly contested nature of the case up to this temporary motion. [ 29 ] The father’s submission that he acted reasonably regarding his request for the appointment of the Office of the Children's Lawyer based on comments by myself as the case management judges raises the difficult issue of the role of the case management judge. [ 30 ] In my view, it is inappropriate for counsel to attempt to rely on comments made during a case conference on a contested motion when such comments are made in the context of settlement discussions.

At a case conference the presiding judge frequently attempts to find methods to resolve or narrow the issues and may urge the parties to seek compromises that may not prevail if the case proceeds to a contested motion. As is made clear to counsel during the case management process, if they intend to proceed with a motion they are required to present evidence upon which to base their position.

As the case management process is less formal than a motion and not based on sworn evidence, frequently counsel make statements regarding the strength of their positions or indicate there is evidence to substantiate their positions that are then not substantiated or produced at the motion. [ 31 ] In this case, although it was reasonable for the father to make a request for the Office of the Children's Lawyer he cannot and should not have relied on any comments made at the case conference and should have provided an evidentiary basis for the need for such an investigation.

The father’s affidavit made only a passing reference to the Office of the Children's Lawyer and that was only in the context of showing that the mother was acting unreasonably as she would not consent to the appointment.

The only submission made by father’s counsel on this issue was the comment that as the mother’s counsel referred to the case as “high conflict”, something the father did not agree with, the Office of the Children's Lawyer would assist the court and the parties in diffusing the situation. [ 32 ] Based on the submissions of mother’s counsel, I was persuaded that the father’s request for the Office of the Children's Lawyer was simply a “fishing expedition” and there was no compelling need for more information about the child or the parties to deal with the issues before the court or the need to further delay the proceedings for such an investigation.

I therefore find that the mother was successful on this issue by opposing the appointment. [ 33 ] With respect to the child support issues, it was the mother’s position that support should be based on the father’s previous year’s income as he had always earned overtime and it was speculative that his income would be reduced in this year. She also requested that the father pay his proportionate share of the day care expenses. Any re-adjustment to an overpayment would be made when the parties exchanged their income tax returns. The mother was also successful on this issue.

The mother’s offer to settle did not deal with child support but this issue did not take a significant time to argue. [ 34 ] The mother was also successful on the issue of custody. The father opposed any order being made at this time. But the mother was successful in obtaining a temporary order based on the thigh conflict between the parties, their inability to communicate and their disagreement over issues that will need to be determined pending trial. [ 35 ] The most significant issue was the access schedule.

Although the mother was not completely successful on this issue as the order made permitted consecutive days of access and specified access, overall the mother was much more successful than the father as overnight access was not ordered, the father was granted less access than he requested and the father was not permitted to take the child out of daycare any time he wished. [ 36 ] Therefore, I find that the mother was the successful party on this motion and is presumed to be entitled to her costs.

I also find that the mother acted reasonably in both commencing this motion and in her conduct throughout. [ 37 ] In determining the amount of costs, I have considered the following factors as set out in Rule 24 (11) as follows:

a) The importance, complexity or difficulty of the issues: As in most family law cases, a temporary motion is of utmost importance to the parties, but it was not complicated or difficult from a legal perspective. Neither counsel relied on any case law although the submissions as to an appropriate

schedule took some time to argue.

b) The reasonableness or unreasonable of each party’s behavior in the case: The mother acted reasonably and appropriately. I note that counsel for the mother, despite serving an offer to settle is only requesting costs on a partial recovery basis even after the offer to settle was served. As indicated the father acted unreasonably in not making an offer to settle. I also find that the mother’s motion was necessitated by the father’s unreasonable behavior in attempting to intimidating the mother including, his threats to have her committed to a mental institution, audio and video taping without her permission and attending with other police officers for access exchanges.

c) The lawyer’s rates:

Mother’s counsel has 34 years of experience as a family law counsel; her rates are $400 per hour on a partial indemnity basis and $550 per hour on a substantial indemnity basis.

Father’s counsel submits that the rates are excessive and the court should be guided by the “Information for the Profession” table submitted in 2005 to the Civil Rules Committee that recommended maximum partial indemnity hourly rates of $350 (20 years and over) and $300 (10 to 19 years) respectively which can be adjusted for inflation but that these rate only apply to the more experienced counsel and the most complicated matters. [2] I point out the obvious that there is a Family Law Rules Committee that has not endorsed or set out any similar suggested hourly rates.

I find that the court in Rule 24 (11) of the Family Law Rules states that “the lawyer’s rates” are a factor to consider and the Family Law Rules did not find it necessary to be any more specific. Judges who routinely hear family law case are familiar with the rates charged by counsel. I find that the rates charged by Ms Haber in this case are similar to the rates charged by other experienced family law counsel in this jurisdiction and are reasonable. However, I agree with counsel for the father that the charge of the hourly rate for travel time is excessive.

d) The time properly spent on the case: The Bill of Costs indicates counsel spent 16.6 hours for drafting the Notice of Motion, preparing a supporting affidavit and a responding affidavit to the father’s cross-motion, legal research on urgent motions, travel time, preparation of the orders and a further block fee of $750 for each of the attendances on March 22 nd and July 24 th 2013 to argue the motions. It is submitted by mother’s counsel that the motion on July 24 th is a return of the original motion before the court on March 22 nd and she is entitled to costs for both attendances.

It is submitted by father’s counsel that the mother is not entitled to her costs of the motion on March 22 nd as that was a step in the proceeding and if costs were being sought they should have been requested at that time. The mother filed her Notice of Motion returnable on Match 22 nd as an urgent basis. A temporary without prejudice order was made and the motion was then adjourned to be argued. The parties did not proceed to argue the motion on its merits until the July 24 th attendance.

The fact that counsel attempted in the interim to resolve the issues through two case conferences does not change the fact that the Notice of Motion on March 22 nd was adjourned to July 24 th when it was argued on its merits. I do not agree that the March 22 nd attendance was a distinct step in the proceeding and that counsel is thereby deprived of seeking costs.

It is important to note that no further Notice of Motion was filed by the mother and in argument she relied on her supporting affidavit filed with the motion and only filed a further reply affidavit to respond to the father’s affidavit and to is cross- motion. As counsel for the father also submits that the hours spent by mother’s counsel are excessive, it would have been useful for her to submit her own Bill of costs as a comparison.

e) Expenses properly paid or payable: A claim for disbursements of $357.98 exclusive of any applicable taxes is reasonable and does include the process server’s attendance to file documents for both the March 22 nd and July 24 th court attendances.

f) Other relevant factors : It is submitted by father’s counsel that an order of costs will cause a hardship to the father. Although the order made permits the father to pay any support arrears when the matrimonial home is sold, it is submitted that the house is not yet even listed for sale, the mother is not contributing to the capital expenses of the home and there may not be much money remaining when the debts are paid from the proceeds of sale.

It is further submitted that the father believes he will not earn $120,000 this year as his overtime opportunities will be diminished and he will only earn about $110,000 and although there will be an adjustment made next year, any order of costs to be paid at this time will cause a “true hardship”. However, the father still earns more than the mother who has just commenced a new job and will be earning $85,000. Further, the difference between the amount of child support payable on income of $120,000 rather than $110,000 is only $79.00 per month and 2.1% higher with respect to his share of the daycare expenses.

If orders for costs were deferred then the purpose of costs as a method by which the court can control its process and a means of requiring parties to take a hard look at the merits of their positions would be defeated. [ 38 ] In considering all of these factors, I find that the mother is entitled to close to full recovery of the costs sought as she served an offer to settle and she was substantially successful on the access

schedule and completely successful on the other issues on this motion. I find that a fair and reasonable amount of costs is $8,500.00 payable within 30 days. Order as follows: [ 39 ] The Respondent, Brian Matthew Collymore shall pay the Applicant, Crystal Clark costs fixed at $8,500.00 inclusive of disbursements and applicable taxes within 30 days. ___________________________

Justice Roselyn Zisman DATE: September 12, 2013