2017 ONSC 4836, 2017 ONSC 4836

CITATION: 2017 ONSC 4836 COURT FILE NO.: 644/14 DATE: 2017/08/09 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Shannon Charisse Glasius, Applicant AND John Willard Brown, Respondent BEFORE: Mr. Justice Patrick Hurley COUNSEL: Theresa J. VanLuven, for the Applicant (Rachel Stephenson appearing on August 8, 2017) Michael Swindley, for the Respondent HEARD: August 8, 2017 costs ENDORSEMENT HURLEY, J. [1] The parties settled this proceeding with the exception of the issue of costs by minutes of settlement dated March 15, 2017. [2] Paragraph 18 of the minutes of settlement states: a.

The parties are not ad idem on the issue of costs for this application. The parties seek permission from the court to make writtensubmissions as to costs pursuant to rule 24 of the Family Law Rules. [3] According to the endorsement record, a final order was made on consent on March 17, 2017 in accordance with the minutesof settlement and a hearing date was to be set for oral submissions on costs. [4] On the consent of counsel, a 30 minute hearing date was scheduled for August 8, 2017 on June 15, 2017. [5] Written submissions were filed by the parties. Mr. Swindley and Ms.

Stephenson appeared before me on August 8 andadvised me that they were content that the issue of costs be decided on the basis of the written submissions without any oral argument. Both filed case law on this date. [6] The respondent asserts that he is entitled to costs because he was the successful party and made an offer to settle before thecommencement of this proceeding that was more favourable than the terms of the negotiated settlement. He is seeking full recovery ofhis costs from January 15, 2016 onwards.

According to his bill of costs, the total amount on a substantial indemnity basis is $7,063.75and on a partial indemnity basis is $4,786.94. In the written submissions, the total amount of fees is identified as $8,612.50 plus HSTand disbursements. [7] The applicant submits that there should be no costs awarded to the respondent. Alternatively, if costs are awarded, theyshould be substantially less than the amount claimed by the respondent.

Her principal objections to an award of costs in favour of therespondent is that he unreasonably refused her proposal for a private assessment, leaving her no alternative but to commence thisapplication; that the terms of the negotiated settlement are not more favourable than the informal offer to settle made by him; and thatshe voluntarily agreed to pay child support as a term of the settlement notwithstanding that the respondent did not seek such relief in hisanswer. [8] The respondent acknowledges that there was no formal offer to settle pursuant to rule 18.

He relies on a letter which hislawyer sent to the applicant’s then lawyer, Jacques Menard, on January 15, 2016 following a settlement meeting attended by both theparties and their lawyers. This letter was not signed by either the respondent or his lawyer so it does not comply with subrule 18(4). Ialso do not believe that the cost consequences referred to in subrule 18(14) apply because the conditions stipulated in subsection 14 havenot been met in this case.

As a result, although the respondent relies upon rule 18 to advance his claim for costs on a full recovery basis,I conclude that the rule does not apply in the circumstances. [9] I agree, however, that I can take the letter into account in exercising my discretion over costs pursuant to subrules 24(5)(c)and 24(11)(f). [10] In Upton v. Harris, 2016 ONSC 2891 , Mr. Justice Charney reviewed the case law on costs in the context of anegotiated settlement.

As many judges have observed, it is very difficult to accurately measure success when a case is settled and acourt should be cautious in awarding costs against either party to a settlement. [11] The parties are to be commended for settling this litigation at an early stage without any contested hearing. Based on thewritten submissions, a review of the continuing record and the report of the Children’s Lawyer, I cannot, to borrow Heaney, RSJ’s words

in Morrill v. Turnbull, 2016 ONSC 1906 , “declare a winner or loser” in this case. [12] The respondent did achieve a settlement that essentially maintains the status quo and supports his position that the childrenshould remain living in Kingston. To that extent, he was successful in opposing the application. [13] However, in exercising my discretion, I have decided that the appropriate result is that the parties bear their own costs. I saythis for two reasons: a.

One is the applicant’s uncontroverted submission that she proposed a private assessment before the commencement of herapplication which the respondent declined and that she made it clear that, if an assessment was conducted, she would abide by therecommendations of the assessor which she ultimately did soon after the disclosure meeting took place with the assessor appointed bythe Office of the Children’s Lawyer. b.

The second is the applicant’s voluntary agreement to pay child support despite the respondent’s avowal in paragraph 48 of hisanswer that he was not seeking the payment of child support by her. [14] While I do not have sufficient evidence to conclude, with any degree of certainty, that the applicant is “worse off financially”or that she is “financially strapped” as she alleges in paragraph 44 of her submissions, the monthly child support payment of $925 is afinancial burden that may not have been imposed after a contested trial, given the respondent’s apparently deliberate decision to notclaim child support even if he was successful on the mobility issue at trial. [15] I hesitate to characterize either party’s behaviour as unreasonable.

The litigation proceeded expeditiously without anycontested interlocutory motions and the resolution occurred before a settlement conference was held. In the circumstances, it would becounterproductive to the judicious settlements of these types of disputes to order a settling party to pay costs to his or her opponent. [16] Although I have decided that the parties should bear their own costs, I will also provide my view on the proper quantum ofcosts should I have awarded them. The costs would be on a partial indemnity basis. I have no reason to question that Mr.

Swindleyspent the time identified in his bill of costs and I consider the proposed hourly rate reasonable. I would have fixed the costs at $2,233.53inclusive of HST and disbursements. I do so because some of the fees claimed are either not recoverable (e.g. preparation for andattendance at the case conference, consent motion for appointment of Children’s Lawyer, review of file by Kristin Muszynski) or theservices are unrelated, on their face, to this litigation (e.g. reference to assault charges and bail conditions). [17] The applicant has been successful in opposing the respondent’s claim for costs.

I decline to award her any costs related to thisissue because she should have foreseen that, if she commenced an application and it was subsequently resolved by an agreement that, forall intents and purposes, maintained the existing arrangements with respect to custody and access, the respondent would seek to recoup atleast some of his legal fees from her. Mr. Justice Patrick Hurley Date: August 10, 2017 CITATION: 2017 ONSC 4836 COURT FILE NO.: 644/14 DATE: 2017/08/09

ONTARIO SUPERIOR COURT OF JUSTICE RE: Shannon Charisse Glasius, Applicant AND John Willard Brown, Respondent BEFORE: Mr. Justice Patrick Hurley COUNSEL: Theresa J. VanLuven, for the Applicant Michael Swindley, for the Respondent COSTS ENDORSEMENT Mr. Justice Patrick Hurley Released: August 10, 2017