Court File and Parties

CITATION: LOF v. LOF, 2017 ONSC 5329

DIVISIONAL COURT FILE NO.: 16-756ML

DATE: 2017-Sep-26

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KRISTA ELIZABETH LOF, Responding Party/Applicant

AND:

HENRY JACOB LOF, Moving Party/Respondent

BEFORE: The Honourable Mr. Justice R.J. Nightingale

COUNSEL: Yolanta M. Lewis, for the Responding Party/Applicant Amaranth V. Misir, for the Moving Party/Respondent

HEARD at St. Catharines: In Writing

RULING ON MOTION FOR LEAVE TO APPEAL COSTS ORDER

[1] The moving party Henry Lof brings this motion for leave to appeal the final costs Order of Scott J. dated August 8, 2016 wherein she awarded costs payable by him to Krista Lof in the amount of $7500 on her motion to change.

[2] Krista Lof commenced her motion to change child support payable by Henry Lof in November 2015 because of his refusal to pay increased child support in accordance with the Child Support Guidelines based on their separation agreement. She made an offer to settle in April 2016 increasing that support on June 1 of 2015 and 2016 in accordance with the Guidelines based on his increased annual income. That offer was accepted by Henry Lof before Reid J. at a settlement conference on May 9, 2016 with minutes of settlement to be filed and costs of the motion to be dealt with on a regular motion date.

[3] Henry Lof did not agree to the draft minutes of settlement and draft order forwarded to him for his signature and the matter came before Scott J. to determine whether the accepted offer should become the court order. Krista Lof was successful in that request and the order was granted with some minor drafting changes.

[4] Scott J. subsequently ordered Henry Lof to be responsible for the costs of the proceeding fixing them in the amount of $7,500. She considered the following matters:

a) Krista Lof was the successful party.

b) Nothing in her behaviour concluded she behaved unreasonably.

c) There was nothing to suggest divided success on her motion to change.

d) The importance of the matter to both parties which was not complex or difficult.

e) There was some unreasonable behaviour on Henry Lof by suggesting further changes to the minutes of settlement and draft order he had already agreed to.

f) She reduced Krista Lof’s claim for fees for travel time and for work not related to the issue of child support before the court.

g) She stated that she was to consider fixing costs in an amount that was fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful litigant and that in assessing costs, it was not just a simple mathematical calculation of hours spent times hourly rates.

[5] Henry Lof states that leave should be granted to appeal that costs award of Scott J. He submits that Scott J failed to consider wasted expenditure based on the matter proceeding as a motion to change rather than as an application, did not consider his financial ability to pay the costs, failed to apply the principle of proportionality in setting the amount of costs by simply multiplying the hours by the hourly rates of counsel, and failed to provide adequate reasons.

Analysis

[6] Leave to appeal a costs order under s. 133 of the Courts of Justice Act will be granted only sparingly in obvious cases where the party seeking leave convinces the court that there are strong grounds upon which the appellate court could find that the judge erred in principle or was plainly wrong in exercising her discretion to which considerable deference must be accorded. 316697 Ontario Inc. v. Sharma, 2012 ONSC 4193; McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (2008), 2008 ONCA 597, 95 O.R. 365 (C.A.); Bellissimo Excavating Ltd. v. Ding (2004), 193 O.A.C. 145 (Div. Ct.).

[7] In my view, the motion for leave must be dismissed. The moving party has not established that Scott J. in granting costs of $7,500 against him misapprehended significant facts, determined the matter in a non-judicial manner or acted on a wrong principle. Ramsahai-Whing v. Weenen, 2017 ONSC 1091.

[8] By Henry Lof not accepting Krista Lof’s settlement offer by May 2, 2016, he was required to pay her costs to be determined by the Court when he accepted that offer after that date.

[9] It was because of his refusal initially to pay Guidelines child support that Krista Lof was required to institute these proceedings. The fact that it was by motion to change rather than by way of application does not mean there was any wasted expenditure in the proceeding. In fact, it was Henry Lof who requested in his letter of October 22, 2015 to Krista Lof’s counsel that Krista Lof proceed with a motion through court with respect to the child support payments when he refused to pay the requested increased amount. He defended the motion asking to pay less than Guidelines support and offered then to pay $1,440 in total monthly child support for four children. Moreover, in his responding Court material filed in January 2016, he deposed that his income was only $70,000 for 2015 when in fact it was $88,209 which he would have known.

[10] There apparently was no affidavit evidence before Scott J. on any alleged lack of financial ability of Mr. Lof to pay the costs award nor is there any such evidence in this motion for leave.

[11] The moving party states that the amount in dispute as finalized in the accepted offer to settle was less than $1,000. However, when the motion was initially filed, Krista Lof claimed increased child support of $1,629 per month commencing June 1, 2015 based on Mr. Lof’s increased 2014 income. He offered only $1,440 monthly, less than Guidelines support, but apparently sometime after the motion was commenced paid the “arrears” owing commencing June 1, 2015 based on his increased income. It was his refusal to pay the proper amount of child support despite his clear obligation to do so that required this court proceeding. Moreover, he had the opportunity to simply pay the proper amount of support payable commencing June 1, 2016 plus costs of only $2,500 if he accepted her offer by May 2, 2016 that he pay $1869 in monthly child support based on his 2015 income of $88,209. He failed to do so thereby requiring him to pay costs after that date to be determined by the Court.

[12] In considering the moving party’s proportionality argument, the court should also consider the reasoning of Pitt J in Bellissimo Excavating Ltd. above at page 15:

That the costs significantly exceed the amounts at stake in the litigation is regrettable, but is a common experience and is well known to Counsel as one of the risks involved in pursuing or defending a case such as this to the bitter end rather than finding a compromising solution. To reduce the plaintiff’s otherwise reasonable costs on this basis would simply encourage that kind of intransigence displayed by the defendants in this case.

[13] Moreover, the moving party has not established that there is reason to doubt the correctness of the order of Scott J. in either the manner in which she exercised her discretion or in the amount of costs that she awarded against him. Scott J. provided detailed reasons for her decision in both matters. It appears from her reasons that she exercised her discretion in awarding costs based on the overriding principle of fairness and reasonableness for the unsuccessful party rather than simply multiplying the hours spent by Counsel times her hourly rate. The amount of costs claimed in the bill of costs dated June 7, 2016 was $7931.68, which was based on multiplying the hours spent times the hourly rate, HST and disbursements and a further amount of $2500 for the parties’ attendances before her on June 16 and July 14, 2016. Scott J. reduced the claimed costs by approximately 30% and fixed them in a global amount of $7500 total.

[14] Lastly, given the issues in this case, they do not go beyond the interests of the immediate parties which could affect the fundamental principle of access to justice for other parties.

[15] Accordingly, the motion for leave to appeal the costs decision of Scott J. of August 8, 2016 is hereby dismissed.

[16] The moving party Henry Lof shall pay to the respondent Krista Lof her costs of this motion in the amount of $750 within 30 days.

The Honourable Mr. Justice R.J. Nightingale

Date: September 26, 2017