Varghese v. Geeverghese, 2022 ONCJ 592

ONTARIO COURT OF JUSTICE CITATION: Varghese v. Geeverghese , 2022 ONCJ 592 DATE: 2022-12-12 COURT FILE No.: Toronto DFO-15-13050 BETWEEN: Jane Varghese Applicant — and — Lijon Geeverghese Respondent Ruling on Costs (In Chambers) Justice Sheilagh O’Connell Kathryn L. Smithen ...................................................... Counsel for the applicant Kristin Whitley ..........................................................

Counsel for the respondent O’CONNELL J.: Introduction : [ 1 ] Ms Varghese, the applicant mother, seeks full recovery of her legal costs in the amount of $26,559.53 for a motion that she brought seeking permission to register and enrol the parties’ child in French Immersion when she starts grade 4. [ 2 ] Mr.

Geeverghese, the respondent father submits that no costs should be ordered because the matter settled well before the scheduled motion was set to proceed, before any affidavit materials were prepared, and prior to any questioning that had been sought by the applicant mother. [ 3 ] Alternatively, he submits that if the court is inclined to award costs, then these costs should be to him, not the applicant mother, and in the amount of $2,500.00. because the mother has acted unreasonably throughout.

Brief Background : [ 4 ] The parties have been involved in litigation in this court regarding their daughter Ayla since 2015. Ayla is now ten years old.

On October 17, 2018, the parties settled their family law issues in accordance with the Final Consent Order of Justice Brian Weagant. [ 5 ] The Final Order is nineteen pages in length and contained detailed parenting provisions, including the following provision regarding the decision-making process for major issues regarding their daughter’s education: “Both the Applicant and the Respondent shall have joint decision making with respect to Ayla’s major education issues.

If the parties are unable to agree on the decision to be made in relation to Ayla’s education, they shall consult educational professionals and abide by a consensus of 2 or more professionals or they shall abide by the Dispute Resolution process provided for in paragraph 57 below.”

[ 6 ] In December of 2020, the mother wrote to the father about enrolling Ayla in French Immersion. The father did not agree that Ayla should go to French Immersion. The parties engaged in ongoing correspondence in January and early February of 2021 and were not able to resolve this issue. [ 7 ] In accordance with her understanding of the education provision above in the Final Order, the mother wrote directly to four of Ayla’s teachers, without consulting the father, and obtained in writing their opinions on French Immersion for Ayla.

All four teachers unanimously wrote back to the mother that Ayla is a strong and bright student who would be a very good candidate for French Immersion. The mother forwarded their views (all by email) to the father. [ 8 ] The father did not accept that this satisfied the requirements of the Final Order. He too wrote directly to the same teachers, also without consulting the mother. He requested that they contact him so that he could ask them some questions and directly obtain their input.

He also advised them of the provision regarding education in the Court Order and asked them if they were aware that their emails were being used by the mother for this purpose, that is, “as input in a Court Agreement dispute resolution mechanism”. The teachers were not aware of this. The mother had not advised them. [ 9 ] On February 4, 2021, the mother received a letter from the school board notifying her that the deadline to reserve Ayala’s placement in French Immersion was February 11, 2021. The mother sent the father the notice and sought his agreement to register Ayala so as not to miss the deadline.

The father refused to consent to Ayala’s registration and wrote to the mother, “I do not consent to Ayala’s enrollment in French Immersion at this time. If you unilaterally confirm her enrollment, you will be breaching the Court Order.” [ 10 ] The parties were unable to resolve the issue of Ayala’s registration before the February 11th deadline. On February 9th, the mother filed an urgent 14b motion seeking to confirm Ayala’s registration and enrollment on French Immersion.

Justice Weagant reviewed the motion in chambers and on a temporary without prejudice basis, he permitted the mother to register Ayala for French Immersion immediately without the consent or signature of the father. In his endorsement dated February 10, 2021, granting the motion on this basis, Justice Weagant wrote the following: “The skeletal issue here is where Ayala will attend school in September, some six and half months from now. Mother and child want a French Immersion program, father does not.

The urgent fact is that Ayala has been accepted into a French Immersion program and if she does not have the registration completed by tomorrow, she will lose the opportunity. Let me point out the obvious: reserving a place in the program preserves the right of both parties to have a trial of an issue on whether this is an educationally sound move that is in Ayala’s best interest. There is absolutely no reason why she should not be registered before the deadline and the parties can subsequently litigate the issue of where she will be attending in September.

If I don’t make this order, the child will be prejudiced.” [ 11 ] As noted, Justice Weagant’s Order was made on a temporary without prejudice basis. He adjourned the motion regarding the issues of the child’s ultimate enrolment in the French Immersion program so that the father could have proper time to respond. The parties then proceeded to a case conference. [ 12 ] Following the case conference, Justice Weagant ordered that the parties were to attend Assignment Court to set a one-day hearing on the issue of whether Ayala should attend French Immersion, which involved going to a different public school.

The matter was scheduled to be heard before me on June 10, 2021. [ 13 ] The mother’s counsel then wrote several lengthy letters to the teachers previously contacted by the mother and requested that they provide affidavit evidence for the court hearing, or alternatively they would be summoned to court by subpoena to give evidence. These letters were attached as exhibits to her written cost submissions.

Needless to say, the teachers were now reluctant to get involved. [ 14 ] The mother’s counsel then contacted counsel for the Toronto District School Board (TDSB) and attempted to arrange for the teachers to be personally served with individual Summons for oral questioning in advance of the motion.

TDSB counsel did not consent to accept service of the summons on behalf of the teachers. [ 15 ] The mother then brought a further 14b motion, seeking irregular service of the summons on the teachers by email and compelling production of substantial disclosure, including the teachers’ curriculum vitaes , Ayla’s complete student file, all of the correspondence between the teachers and both parents, including email correspondence, and seeking an order for the oral questioning of all of the teachers.

TDSB counsel was also served with the motion. [ 16 ] The court requested that counsel only attend for a telephone conference regarding the mother’s 14b motion given the orders being sought, which were more than just procedural, and the uncertainty as to whether these requests were opposed. At the teleconference, the father indicated that he was not opposed to the orders being sought at the teleconference. [ 17 ] The court granted the production orders. On consent of counsel, with the teachers’ availability, out of court questioning of the teachers was scheduled on for May 24, 2021.

The motion regarding whether the child should attend French Immersion in September of 2021 was then rescheduled to July 29, 2021. [ 18 ] On May 17, 2021, approximately a week before the scheduled questioning of the teachers and ten weeks before the hearing of the motion, the father consented in writing to Ayla’s enrolment and attendance in French Immersion for September. The questioning and the motion were both cancelled. It was not necessary for either counsel to prepare for the oral questioning or to prepare motion materials for the hearing. [ 19 ] The parties were unable to resolve the issue of costs.

It was the father’s position initially that he would pay $5,000.00 in costs. The mother initially sought $18,750.00 in costs, but now seeks full recovery in the amount $26,559.53.

The Positions of the Parties: [20] The mother submits that she was put to enormous expense to secure Ayla’s place in French Immersion largely due to thefather’s unreasonable position and bad faith conduct.

She states that the father acted in bad faith by trying to undermine and sabotage themother’s efforts to secure professional opinions in support of the educational decision that needed to be made, which she was attemptingto do in accordance with the process set out in the Final Order. [21] The father submits that the enormous expense incurred by the mother was caused by her own unreasonable litigation tactics.Further, her costs are unreasonable, contain improper items, and are grossly disproportionate to the work necessary, particularly giventhat neither party had to prepare any motion or affidavit materials for the motion scheduled for July 29, 2021 or to attend and prepare forthe oral questioning. [22] The father also states that the costs of these submissions could have been avoided.

He submits that the mother’s written costsubmissions are unnecessarily excessive, improper, and are replete with inaccuracies and misrepresentations. They are 163 pages inlength, compelling the preparation of responding costs submissions at a significant and unwarranted cost to him. He states that themother’s submissions are intended to bolster her claim for costs by painting the father in a negative light despite the fact that he actedentirely reasonably in settling the motion. The Law and Governing Principles: [23] Costs in family law proceeding are governed by Rules 18 and 24 of the Family Law Rules O.

Reg. 114/99 (the “Rules”). [24]

Section 131 of the Court of Justice Act also provides that subject to the provisions of

an Act or the rules of the court, the costsof a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent thecosts shall be paid. R.S.O. 1990, c. C.43, s. 131 (1). [25] Rule 24 (1) of the Rules provides that there is a presumption that a successful party is entitled to the costs of a motion,enforcement, case, or appeal. This can sometimes be difficult to determine when parties settle a case before it proceeds to a hearing. [26] The Ontario Court of Appeal in Mattina v.

Mattina, 2018 ONCA 867, set out that modern costs rules are designed to foster fourfundamental 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 Family Law Rules. [27] Costs can be used to sanction behaviour that increases the expense of litigation or is otherwise unreasonable or vexatious.

Inshort, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderlyadministration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 , 2003 S.C.C. 71,paragraph 25; Gordon v. Wilkins, 2020 ONCJ 199 (O.C.J.), at paragraph 4. [28] As noted, costs awards are discretionary. Two important principles in exercising discretion are reasonableness andproportionality. See: Beaver v.

Hill, 2018 ONCA 840 [paragraphs 11 and 12]. [29] An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of asuccessful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costssought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94; Gordon v. Wilkins, 2020 ONCJ 199 (O.C.J.), atparagraph 6. Determining Success: [30] Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, (S.C.J.),[2000] O.J.

No. 330 (S.C.J.). [31] To determine whether a party has been successful, the court should examine the positions taken by both parties in thelitigation. See: Lazare v. Heitner, 2018 ONSC 4861. This assessment should include the positions taken in the pleadings, and thespecific relief sought at the hearing, if different. See: Kyriacou v. Zikos, 2022 ONSC 401. The court may also take into account how theorder compares to any settlement offers that were made. See: Lawson v. Lawson, (ON SC), [2008] O.J. No. 1978(SCJ); Todor v. Todor, 2021 ONSC 3463; Kyriacou v.

Zikos, supra. [32] While it is more challenging to determine success or relative success in a case that has settled prior to an adjudicated hearing,costs can still be ordered if the court determines that one party was more successful overall than the other party. Scrutiny of offers tosettle is an important

part in assessing the degree of success as well as the reasonableness of a party. See: Johanns v. Fulford, 2010CarswellOnt 11011, 2010 ONCJ 756 at paragraph 16 and 17. [33] Some courts have held that where parties reach a settlement, the court should be slow to award costs in favour of one of theparties unless there are compelling reasons to do so. Courts want to encourage parties to settle their cases in order to avoid costs. It isalso sometimes very difficult to determine who is the “winner” and the “loser” in a negotiated settlement. See Witherspoon v.Witherspoon, 2015 ONSC 6378 ; Davis v. Davis, [2004] O.J.

No. 2256 (S.C.J.); Talbot v. Talbot, 2016 ONSC 1351 ;Frape v. Mastrokalos, 2017 ONCJ 915, 6 R.F.L. (8th) 486.

[34] However, there are cases when costs may be awarded when parties reach a settlement. There may be instances where asettlement is a “clear capitulation” by one party in favour of another, and it is obvious who the successful party is in the litigation. See:Atkinson v. Houpt, 2017 ONCJ 316 .

Offers to Settle: [35] Subrule 18 (4) sets out that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any. [36] Subrule 18 (14) sets out the cost consequences of a party’s failure to accept an offer to settle that is as good as or better than thetrial result of the person making the offer. It reads as follows: 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. [37] Even if subrule 18 (14) does not apply, the court may take into account any written offer to settle, the date it was made and itsterms when exercising its discretion over costs (subrule 18 (1)) or, in assessing the reasonableness of a party under sub-clause (iii) ofsubrule 24 (12) (a). [38] The onus of proving that the offer is as or more favourable than the result is on the person making the offer. See: Neilipovitz v.Neilipovitz, [2014] O.J.

No. 3842 (SCJ). [39] The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopicprecision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrastedwith the order. See: Wilson v Kovalev, 2016 ONSC 163. [40] Close is not good enough to attract the costs consequences of 18 (14). The offer must be as good as or more favourable than thetrial result. See: Gurley v. Gurley, 2013 ONCJ 482.

Reasonableness: [41] Subrule 24 (5) provides some criteria for determining the reasonableness of a party’s behaviour in a case. It reads as follows:

(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. Bad Faith: [42] The mother is alleging that the father acted in bad faith. [43] Bad faith is governed by subrule 24 (8) of the Family Law Rules. This rule states that if a party has acted in bad faith, the courtshall decide costs on a full recovery basis and shall order the party to pay them immediately. [44] A finding of bad faith is rarely made under subrule 24(8). It requires a very high threshold of egregious behaviour. See: Cozziv. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (ON.

SCJ). [45] There is a difference between bad faith and unreasonable behaviour. As Justice Stanley Sherr states in Gordon v Wilkins, “Theessence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It isdone knowingly and intentionally.” See also S.(C.) v. S. (M.) (2007), (ON SC), 38 R.F.L. (6th) 315 (ON SCJ). [46] Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because ofdishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation.

See: Scipione, supra. Other factors affecting costs orders: [47] Subrule 24 (12) reads as follows:

(12) In setting the amount of costs, the court shall consider,

(

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

b) any other relevant matter. [Emphasis added.] [48] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003) (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but not are always a reason to deprive asuccessful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787. Ability to pay will be less of amitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v.Gobin, 2009 ONCJ 278; D.D. and F.D. v.

H.G., 2020 ONSC 1919. [49] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonablyhave expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938. [50] A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount thatthe unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Laidman v.

Pasalic and Laidman, 2020ONSC 7068. [51] An adverse inference may be drawn against a party who does not provide their own bill of costs when challenging the rates andtime of the party claiming costs. This is now required pursuant to subrule 24 (12.2). See: S. W.-S. v. R.S., 2022 ONCJ 11; M.H.S. v.M.R., 2022 ONCJ 28. Application of the Law to the Facts in this Case: The Offers to Settle in this Case: [52] The father made three offers to settle.

The first two offers were not severable, the third and last offer dated May 17, 2021, wasseverable. [53] In the first offer dated April 26, 2021, the father agreed that the child could attend French Immersion provided that there weresignificant changes to the parenting

schedule that expanded the father’s parenting and residential time with the child, which he sets out inthe offer. [54] In the second offer, dated May 14, 2021, the offer to settle was divided into two parts. In Part One, the father agreed that thechild could attend French Immersion provided that in accepting the offer, the mother detailed her proposal for the child’s childcarearrangements at the new school that the child would need to attend for French Immersion. [55] In Part Two of the same Offer dated May 14, 2021, if the mother accepted Part One, then the mother could then choosebetween “Option A” or “Option B” in Part Two. Option A sets out detailed changes to the parenting

schedule expanding the father’stime. Option B states that if the parties settle the issue of French Immersion, then the motion scheduled could be used for a motion tovary the parenting

schedule once the child starts French Immersion. [56] Finally, in the father’s third offer dated May 17, 2021, the father advised that the terms of the father’s May 14, 2021 Offer werenow severable. The third offer was sent by way of correspondence from father’s counsel to mother’s counsel, in which he now consentedto the child’s attendance in French Immersion without qualification or conditions, as set out in previous offers. [57] The mother made one offer to settle. This Offer was dated and signed February 8, 2021.

It was served on February 9, 2021 onthe same day that the urgent 14b motion to register and enrol the child in French Immersion had been served, given that the deadline forregistration was February 10th and the father was not consenting to registration. [58] The Mother’s Offer to Settle the urgent motion provided the following: 1. The Applicant makes the following Offer to Settle the urgent French Immersion Motion on the following terms: a. The mother shall enrol the child in French Immersion for grade four in accordance with the deadlines set out by TDSBadministrators. b.

The father shall cooperate in the registration process and shall comply with any conditions or obligations arising out of thechild’s registration, imposed by TDSB. c. The father shall refrain from discouraging, disparaging and/or engaging in negative behaviour in the presence of the child orthe parents with regard to the child’s enrolment or engagement in French immersion for grade four; d. If the offer is accepted by 9:30 AM on February 10, 2021, then the father shall pay the mother $1,000.

e. If the offer is not accepted before the motion is argued and the mother is the successful parent, then the father shall pay the mother her costs in a full recovery basis. f. The father will consent to the Order being issued on an emergency basis, and to dispense with approval of the draft order. g. The terms of the Offer are not severable. h. The Offer to Settle expires one minute after the commencement of the urgent Motion. Analysis: Determining Success: [ 59 ] The mother was successful in obtaining the relief that she sought when bringing her motion.

She commenced this litigation solely to seek the court’s permission to register and enrol the child in French Immersion. [ 60 ] The mother was initially compelled to bring an urgent 14b motion, heard in chambers, given the father’s refusal to consent to the child’s registration in French Immersion by the school deadline while the parties continued to negotiate. [ 61 ] Justice Weagant permitted the child to be registered on a temporary without prejudice basis before deadline.

This was necessary to preserve the mother’s right to subsequently litigate the main issue of whether the child would attend French Immersion in the fall once the father had a full opportunity to respond. [ 62 ] To his credit, the father eventually conceded that the child could attend French Immersion, without qualification or conditions.

He did so one week before the questioning of the child’s schoolteachers and ten weeks before the scheduled hearing of the motion, presumably so that both parties could be spared enormous legal fees. [ 63 ] The father initially proposed that he would pay the mother $5,000.00 for her legal costs in bringing the motion, recognizing that the mother was ultimately successful.

Has the Father rebutted the Presumption that the Mother is Entitled to Costs? [ 64 ] The father submits that notwithstanding the mother’s success in achieving the result that she sought on her motion, she should not be entitled to any costs based on her very unreasonable litigation tactics, her grossly disproportionate costs and her unnecessarily excessive and improper costs submissions. [ 65 ] The mother’s written cost submissions are 163 pages in length.

The father submits that they are replete with inaccuracies, compelling his lawyer to prepare responding costs submissions at a significant and unwarranted cost to him. [ 66 ] Although the father’s submissions were persuasive, the father did not rebut the presumption that the mother is entitled to costs. [ 67 ] Nevertheless, the mother is not entitled to the full recovery of her costs and the court is significantly reducing the amount of costs that the mother is seeking for the reasons below. Amount of Costs and Order : [ 68 ] This motion was important to both parties.

The mother sincerely believes, as do many parents, that attending French Immersion is in her daughter’s best interests and that their daughter is very good candidate for French Immersion. Having multiple languages can broaden a child’s future and opportunities. The mother’s position was reasonable. [ 69 ] The father was concerned about the impact of a change in school on their daughter and as well as the impact of the change in school on his parenting time, given the school’s location. [ 70 ] This was primarily a one issue motion.

It should not have been complex or difficult. [ 71 ] Notwithstanding the mother’s reasonable desire to enrol the child in French Immersion, both the mother’s and the father’s approach to resolving this issue were unreasonable. [ 72 ] In accordance with her understanding of the education provision in the Final Order, the mother wrote directly to four of Ayla’s teachers, without notifying or copying the father on the emails, nor did she disclose to the teachers that she may need their professional opinions in legal proceedings to resolve her dispute with the father about French immersion.

The father should have been copied on the emails and notified in advance that she was reaching out to these professionals. [ 73 ] The father then wrote directly to the same teachers without consulting the mother, nor did he copy the mother on his emails. Further, the father’s emails seemed to be less concerned about whether the child would benefit from French Immersion and more concerned about undermining the mother’s efforts to obtain professional opinions to assist the parties in determining this issue.

There is no doubt that the father’s emails contributed to the teachers’ subsequent reluctance to remain involved as they did not want to be dragged into the litigation between the parties. [ 74 ] Both of these parents should have met with or wrote to the teachers together and worked collaboratively about what was best for their daughter. Their obvious antipathy and distrust of each other is far greater than their desire to put the needs of their child first. [ 75 ] It is clear in reading some of the correspondence from the child’s teachers that there was unanimous support for the child to attend French Immersion.

It is not disputed that the child is bright and a strong student with great language skills who would benefit from learning a second language.

[ 76 ] The father’s refusal to permit the child to even be registered for French Immersion before the February deadline was clearly unreasonable. The father should have consented to the registration on a temporary without prejudice basis while the parties attempted to subsequently resolve the issue of the child’s school before the fall term, as Justice Weagant succinctly explained in his ruling on the urgent motion.

The father surely knew that if the child was not registered in time, then the issue was moot. [ 77 ] However, although the father acted unreasonably, his conduct did not reach the high threshold required under the law to make a finding of bad faith against him. To his credit, he eventually conceded that the child should attend French immersion.

The court did not find bad faith and will therefore not order the full recovery of costs on this basis. [ 78 ] The father’s first two offers to settle, which made his consent to permitting the child to attend French Immersion conditional on expanding his parenting time, were unreasonable. Fortunately, his third and final severable offer to settle was reasonable. [ 79 ] The mother decision to serve only one non-severable Offer to Settle was not reasonable. The Offer dated February 8, 2021 was intended for the urgent motion with respect to registration, not the subsequent motion on the merits.

It contained many non-severable terms that were not ordered by Justice Weagant, nor agreed to by the parties. Further, paragraph 5 of the motion, which the mother partly relies upon for full recovery, is inoperable, because the motion was never argued. [ 80 ] The mother should have served a fresh Offer to Settle with severable terms prior to the main motion.

The mother’s only Offer to Settle does not attract the costs consequences of Rule 18(14) in order to trigger the full recovery of costs. [ 81 ] The hourly rates claimed by the mother’s lawyer were reasonable ($350.00 hourly for the lawyer and $125.00 hourly for the law clerk). [ 82 ] However, respectfully, the time claimed by the mother’s lawyer was unreasonable and grossly disproportionate to a motion of this nature.

It bears repeating that the mother’s motion was settled by the parties prior to the main motion materials being prepared and served by either party, prior to the third-party questioning of the teachers, (sought by the mother’s lawyer) and without the motion being heard. The court really struggled to understand how the mother’s lawyer spent 77.45 hours on the case up to that point. [ 83 ] In reviewing the father’s bill of costs, it is notable that the father’s total costs were $9,250.00, for a total of 24.9 hours claimed.

The hourly rate for the father’s lawyer is higher at $500.00 per hour, but a significant amount of work was also done by the junior lawyer on the case. [ 84 ] A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Laidman v.

Pasalic and Laidman , 2020 ONSC 7068 . [ 85 ] The court acknowledges that the moving party necessarily had to spend more time in preparing the two 14b motions and supporting affidavits, arranging the summons for the teachers and corresponding extensively with the TDSB, as submitted by mother’s counsel. Nevertheless, the approximately 53 additional hours claimed is unreasonable. [ 86 ] The mother should have negotiated costs at a reasonable amount rather than insisting on the full recovery of her costs when the motion was settled.

Her position has only significantly escalated the costs of both parties in the preparation of unnecessarily lengthy costs submissions. [ 87 ] As the Court of Appeal reminds us in Beaver v Hill , supra , “ There is no provision in the Family Law Rules that provides for a general approach of ‘close to full recovery’ costs.” [Emphasis added.] Instead, as the wording of Rule 24(12) makes clear, “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”. [See paragraphs 11 and 12 of that decision.] [ 88 ] The court will make a cost award that reflects these principles, taking into consideration all of the circumstances in this case. [ 89 ] The father can afford the costs that will be ordered.

He will be given a reasonable period of time to pay them. Conclusion and Order : [ 90 ] For the above reasons, I order that father shall pay the mother’s costs fixed at $5,000.00, inclusive fees, disbursements and HST, to be payable no later than 60 days from the date of this Order. Date: December 12, 2022 Justice Sheilagh O’Connell