Price v. Reid, 2013 ONCJ 442

Court File and Parties

Court File No.: D60024/13 Date: 2013-08-13

Ontario Court of Justice Toronto North Family Court

Between:

Mackenzie Price Applicant

- and -

Owen Hezekiah Reid Respondent

Counsel:

• Elena E. Mazinani, for the Applicant
• Ryan Gillisse, for the Respondent

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

1On July 10, 2013 I released my trial decision fixing the respondent's (the father) income at $43,935 per annum for the purpose of calculating child support, adjusted his support obligations as of January 1, 2010 and fixed support arrears at $18,989.

2This was a one-day trial.

3The mother made written costs submissions. She seeks her full recovery costs of $4,542.60. The father also made written costs submissions. He submits that costs should be fixed at $1,800, repayable at $50 per month.

4The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

5Subrule 24(1) of the Family Law Rules (the rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe. To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson.

6Subrule 18(4) of the rules sets out that an offer shall be signed personally by the party making it and also by the party's lawyer.

7Subrule 18(14) of the rules reads as follows:

Costs Consequences of Failure to Accept Offer

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 The offer does not expire and is not withdrawn before the hearing starts.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.

8The mother made an offer to settle that complied with all of the pre-conditions set out in subrule 18(14) of the rules. She offered to fix the father's income at $40,000 per annum for the purpose of calculating child support and to adjust support as of January 1, 2010. She also offered to fix support arrears at $17,545.

9In making this decision, I considered the factors set out in sub-rule 24(11) of the rules, which reads as follows:

24(11) 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.

10The case was important for the parties. It was not complex, but was made more difficult by the father's failure to provide timely or accurate financial disclosure.

11The mother acted reasonably throughout the case. The father did not act reasonably due to his failure to provide timely or accurate financial disclosure or make an offer to settle.

12The rates claimed by the mother's lawyer ($100 per hour) are very reasonable.

13Subrule 24(10) sets out that costs are to be determined in a summary manner after each step in the case by the presiding judge. A "step" in the case is one of the discrete stages recognized by the rules such as a case conference, settlement conference and the like. See: Husein v. Chatoor, 2005 ONCJ 487. The trial judge should not deal with requests for costs that were addressed or should have been addressed at these prior steps in the case. See: Islam v. Rahman, 2007 ONCA 622.

14The mother claimed time spent preparing for and attending at two case conferences. At one of these conferences she was awarded costs of $750. These are prior steps in the case and the mother will not be awarded costs for this work.

15The mother did not differentiate in her bill of costs the time spent on the parenting issues (now resolved) from the time spent on the support issues. She is only entitled to the latter costs. The court recognizes that the support issues were the most contentious in this case and most of counsel's time would have been attributable to them.

16The mother is entitled to claim time spent for meetings with the client and reviewing and preparing pleadings and financial statements as this is time not attributable to any one step in the case. See: Czirjak v. Iskandar, 2010 ONSC 3778.

17The mother claimed disbursements of $1,006.83 but did not provide much detail about these expenses or demonstrate what portion was attributable to the support issues.

18I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. Both these cases point out that when assessing costs it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs....Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

19I considered the respondent's ability to pay the costs order. See: MacDonald v. Magel. A party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs, particularly when they have acted unreasonably and are the author of their own misfortune. See: Snih v. Snih. In the case of Takis v. Takis, [2003] O.J. No. 4059 (S.C.J.) the court found that the respondent's lack of income and assets, though a relevant consideration, could not be used as a shield in unnecessary litigation. I find that with a reasonable repayment plan, the father is able to pay the costs that will be awarded.

20Taking into account all of these considerations, I see no basis to deviate from the presumption in subrule 18(14) of the rules that the mother should be entitled to her partial indemnity costs up until June 27, 2013 (when she served her offer to settle), and full recovery costs after that date. The father should have accepted the mother's offer to settle.

21The mother will be awarded partial indemnity cost of $1,000 up until June 27, 2013, $1,500 full recovery costs after June 27, 2013, $500 for disbursements and $390 for HST, for a total costs award of $3,390.

22The father may repay the costs at the rate of $150 per month, starting on October 1, 2013.