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Crooks v Crooks, 2016 ONSC 1113
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BEFORE: Fitzpatrick J.
COUNSEL: Novalea Jarvis, Counsel for the Applicant
Shawn M. Philbert, Counsel for the Respondent
COSTS ENDORSEMENT <readers should please note that this decision was appealed. The decision on appeal is shown below the initial decision below.
[1] The Applicant and the Respondent were engaged in lengthy, high conflict litigation to address the many issues arising from their marriage and separation, including custody, access, child support, spousal support, property and equalization. These issues are the standard fare of family law cases coming before the courts. None of their issues were exotic or unduly complex.
[2] It is no exaggeration to state that each party was very heavily emotionally and financially invested in the various issues between them. It is a fair assessment to state that they were each prepared to wage battle over each issue and sought to accumulate a ledger of battle “wins” towards being able to claim success in the settlements ultimately reached.
[3] The best proof of the inch by inch approach taken by these parties comes from the Applicant where she provides a seven page chart covering approximately fifty custody and access clauses/issues and cross-references these fifty items against the recommendations from the Office of the Children’s Lawyer, her five Offers to Settle, including at least one that had been withdrawn prior to any settlement being reached, the Respondent’s one Offer and the terms of the Consent Order of Justice Coats in an effort to persuade that she was the successful party. Deciphering and distilling this chart is anything but straightforward. Of course, this chart does not touch upon the support and property issues or any related Offers leading up to the two consent settlements of these issues. The point is that the parties were each content to highly particularize the larger issues and then engage in the seemingly inevitable skirmish over each item.
[4] The threshold difficulties are obvious here in terms of my ability to identify any clear winner and related applicability of Rules 18 and 24 of theFamily Law Rules in my costs analysis.
[5] The first difficulty is that I was not the judge before whom these parties had multiple Conferences resulting in their settlements and related three consent Final Orders. That was Justice Coats and she was the judge who made the three consent Final Orders resolving all issues except costs and the granting of a divorce. For reasons only they know, the parties requested that I make the decision on costs when my only involvement of note in this case was to decide an interim motion brought by the Applicant to unsuccessfully remove the Respondent’s counsel from acting in this case.
[6] The second, albeit more philosophical, difficulty is that the parties negotiated settlements that resulted in the three Final Order of Justice Coats. This is not a case where the parties made offers but could not settle requiring a trial or where an offer was accepted. Here, there was no trial. The parties did not accept any offer made by the other but instead negotiated an entirely distinct settlement. The nuances of the give and take in such a process are not generally compatible with the Rule 18 and 24 cost analysis that would occur had there been a trial where the judge could assess conduct and results against any relevant offer(s) or where the offer of one party was accepted. In these latter scenarios, the matrix has infinitely greater clarity compared to the situation I have here, namely extensive negotiations over numerous court attendances resulting in three settlements and related final orders all before another judge. I am tasked to somehow peer behind all of this and decipher who was the more reasonable, successful party.
[7] It is well established that in performing its costs analysis, the Court should consider an hours and fees based calculation in accordance with the costs grid but should then consider whether, in all the circumstances, the result is fair and reasonable, including the expectations of the parties concerning the quantum of costs (see Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.)and City of Toronto v. First Ontario Realty Corporation (2002), 2002 CanLII 49482 (ON SC), 59 O.R. (3d) 568 at 574 (S.C.).
[8] In other words, reasonableness must be the overriding directive and inform all costs awards. Reasonableness must consider proportionality and, of course, must be assessed in the context of the nature of the proceeding, the character and magnitude of the dispute, the complexity of the factual and legal issues and any other fundamental factors the Court may be directed to when performing a meaningful costs analysis.
[9] I have a Bill of Costs from each party. The Applicant’s Bill of Costs suggests partial indemnity of $69,636.27, substantial indemnity of $90,111.87 and full indemnity of $110,587.47. This Bill of Costs does not offer any meaningful breakdown of the work done. I am simply given block paragraphs listing the general work done with related block of hours. I expect to receive a Bill of Costs that itemizes the time spent for each significant step if I am going to undertake any meaningful costs analysis. I could not do this here.
[10] The Bill of Costs from the Respondent while providing details of the works suggests partial indemnity of $122,319.34, substantial indemnity of $175,864.10 and full indemnity of $187,546.22. These amounts are 75% - 90% greater than the figures quoted by the Applicant. It defies common sense to suggest that one lawyer would require nearly double the billable hours to address the same issues at the same court attendances. Accordingly, this Bill of Costs does little to advance my analysis either.
[11] The costs claimed here are incredible where the parties settled short of a trial, especially the truly astonishing figures suggested by the Respondent. This case involved two individuals who really only had the matrimonial home to divide, where they resolved the financial issues on the basis of payment of $28,017.54, who otherwise dealt with fairly typical custody and access disputes where the Office of the Children’s Lawyer intervened to assist and where there were support issues between two parents who earn modest incomes.
[12] The figures suggested for this case leave me to wonder who has lost all bearing? Is it the parties who are so fueled with vitriolic intent for their now departed former partner? Is it the lawyers being oblivious to the clear disproportionality of fees to issues and the financial ruination of the overall family unit? These are the cases that cause me the most despair for the litigants and, more so, their child who will apparently be deprived of the several hundreds of thousands of dollars that these parents have chosen to invest in Superior Court file #34936/12 instead of their child’s future.
[13] Returning to my task, I must survey this scorched landscape to assess costs. Based on my limited ability to assess the issues, the case trajectory, the results and the conduct of the parties, I would not describe either of the Applicant or the Respondent as having behaved reasonably here. They have both taken turns it would appear at authoring the absurd.
[14] The only topic that I can cultivate any sense of clarity for is the custody and access issue. It is clear that the general custody and access issues were hard fought and the most significant dispute between these parties. The Applicant made several Offers from May, 2014 forward proposing the fundamental framework that the parties ultimately settled upon, namely joint custody with parallel parenting and shared time. I am of the view that the Respondent failed to and should have accepted this basic framework towards achieving settlement of that issue prior to the settlement reached in December, 2014. In other words, the Respondent should have acted more reasonably in response to the Applicant’s repeated proposals providing this framework and this would have saved significant costs to the parties. In my view, the balance of the issues involved a give and take over time to achieve resolution and a dynamic that assigns fault and credit to each side.
[15] As stated above, my task in determining costs is to ultimately distill the competing factors to arrive at what is a reasonable and fair award in the circumstances.
[16] Given all of the above and with due consideration to the factors enumerated in Rules 18 and 24 of the Family Law Rules along with the principle of proportionality that has particular relevance to this case, it would be reasonable and fair to award costs to the Applicant payable by the Respondent in the fixed amount of $25,000.00 payable in 30 days. Order to go accordingly.
Fitzpatrick J.
Date: February 12, 2016
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON, M.L.J. EDWARDS JJ.
M.L.J. EDWARDS J. (Orally)
[1] The appellant husband in these matrimonial proceedings appeals the final costs order (“the Order”) of Fitzpatrick J. [“the trial judge”) dated February 12, 2016, as a result of which the husband was ordered to pay the respondent wife her costs fixed in the amount of $25,000.00.
[2] Leave to appeal the order was granted pursuant to the endorsement of Justice Donohue, dated June 14, 2016.
Standard of Review
[3] In Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 (CanLII), [2004] 1 S.C.R. 303, at para. 27, the Supreme Court of Canada stated:
A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong.
[4] An award of costs is a discretionary order and as such, appellate review is limited.
[5] This court sitting as an appellate court should only interfere with the order if there has been a misdirection or the decision is so clearly wrong as to amount to an injustice.
The Facts
[6] The determination of costs came before the trial judge as a result of the parties having resolved all of the issues arising out of their separation; all, that is, except costs. Their agreement resulted in three final orders of Justice Coats that incorporated the parties’ agreement. For reasons best known to the parties, they requested that the issue of costs be dealt with by the trial judge, even though he only had very limited background with the case. The parties provided written submissions and their bills of costs to the trial judge together with their various offers to settle. The husband sought costs on a partial indemnity basis of approximately $122,000.00 and on a full indemnity basis of approximately $188,000.00. The wife on the other hand suggested that she should be awarded costs ranging from approximately $70,000.00 on a partial indemnity basis to approximately $110,000.00.
[7] In coming to the conclusion that he did, the trial judge was put into a very difficult position as he was asked to assess costs by reference only to the parties’ various settlement offers and the parties’ written submissions. This was not the classic situation after a trial where there is a “winner” and a “loser” and the court is then in the best position to determine which party has presented the most reasonable offer in the context of the final order of the court.
[8] The trial judge found that both parties acted unreasonably throughout the process, except with respect to the issue of custody and access. At paragraph 14 of his reasons he stated:
The only topic that I can cultivate any sense of clarity for is the custody and access issue. It is clear that the general custody and access issues were hard fought and the most significant dispute between these parties. The applicant made several offers from May 2014 forward, proposing the fundamental framework that the parties ultimately settled upon, namely, joint custody with parallel parenting and shared time. I am of the view that the respondent failed to and should have accepted this basic framework towards achieving settlement of that issue prior to the settlement reached in December 2014. In other words, the respondent should have acted more reasonably in response to the applicant’s repeated proposals providing this framework and this would have saved significant costs to the parties. In my view the balance of the issues involved a give and take over time to achieve resolution and a dynamic that assigns fault and credit to each side.
[9] In my view, the trial judge made a palpable and overriding error when he stated the wife’s offers reflected the fundamental framework in the trial order. He failed to consider the husband’s April 2014 offer that reflected the fundamental framework of parallel parenting. The wife’s offers did not initially propose parallel parenting but rather, weekend access. The trial judge’s error of fact informed his conclusion that the husband’s conduct was unreasonable.
Costs of Trial
[11] Having now excised, essentially, paragraph 14 of the trial judge’s reasons, it is apparent up to that point in time the trial judge would not have awarded any costs at all and our view is that there is no error in the balance of his reasoning and as such there will be no order of costs with respect to the remaining issues.
Costs of Appeal
[12] In determining the question of costs of the appeal we take into consideration the offer that was made by the respondent, which in our view was a reasonable offer and had it been accepted by the appellant would have, for all intents and purposes, disposed of the appeal.
_______________________________
M.L.J. Edwards J.
I agree _______________________________
Kiteley J.
I agree _______________________________
Swinton J.
Date of Reasons for Judgment: March 30, 2017
Date of Release: March 31, 2017
FOOT NOTE:
Ontario Superior Court of Justice Crooks v. Crooks 2016
Sheanna Crooks, Applicant Courtney Crooks, Respondent Donahue J. Judgment: June 14, 2016 Docket: Brampton DC-16-0025-00ML
Proceedings: allowing leave to appeal Crooks v. Crooks (2016), 2016 ONSC 1113,
RE: Fitzpatrick J. (Ont. S.C.J.)
Counsel: M. Sirivar, for Applicant S.
Philbert, for Respondent
Subject: Civil Practice and Procedure; Family APPLICATION by husband in matrimonial litigation for leave to appeal judgment reported at Crooks v. Crooks (2016), 2016 ONSC 1113, 2016 CarswellOnt 2157 (Ont. S.C.J.), making costs order in favour of wife.
Donahue J.:
1 Leave to appeal costs order.
2 Mr. Crooks seeks leave to appeal Fitzpatrick J's cost order following the parties consent orders on all other issues.
3 On written submissions Fitzpatrick J had great challenges to sort out the respective winners & losers.
4 In conclusion he found custody and access to be the most significant dispute
5 In that regard he found it unreasonable for Mr. Crooks to not have accepted the fundamental framework proposed in Ms. Crooks series of offers to settle from May 2014.
6 I note that leave to appeal costs orders is given sparingly & only on strong grounds where the Justice erred in the facts or exercised discretion on wrong principles.
7 See Johanns v Fulford, Aston J
. 8 Here I am satisfied that the facts may well have been in error. Mr. Crooks has shown that for custody & access he made a severable offer in April 2014 for joint custody, shared residency and week on week access which is how the case resolved. In response, Ms. Crooks' offers at times were not severable from other issues (of which Mr. Crooks settled on ultimately more favourably) and were for weekend access
. 9 The early April 2014 severable order of Mr. Crooks mirrored the OCL recommendations.
10 I am satisfied that the Justice in suggesting that Mr. Crooks did not accept the "Fundamental framework that the parties ultimately settled upon" and so should pay some costs to Ms. Crooks was based on incorrect facts.
11 Leave to appeal cost is granted.
12 Costs
13 Mr. Crooks seeks substantial indemnity costs basis of $8,838.45.
14 The focused argument was successful & I find that $3,000.00 is an appropriate cost amount on a partial indemnity for the issues here. I fix costs at $3,000 to be considered on the hearing by Divisional Court.
. Application granted.
