Court File and Parties
Sudbury Registry No.: D-509-96(02) Date: 2013-07-17 Ontario Court of Justice
Between: Nathalie Courtemanche, Applicant
— And —
Andy Lapointe, Respondent
Before: Justice Randall W. Lalande
Heard on: 27 March 2013
Reasons for Judgment released on: 18 December 2012
Ruling on Costs released on: 17 July 2013
Counsel:
- Jerome C. Gardner for the applicant
- Andy Lapointe on his own behalf
- Pierre R. Bradley for the Office of the Children's Lawyer, legal representative for the children
JUSTICE R.W. LALANDE:
1: INTRODUCTION
[1] This matter proceeded to trial on 14 December 2012. Reasons for judgment were released on 18 December 2012. The issue of costs was deferred and argued on 27 March 2013.
2: BACKGROUND
[2] The mother and father resided together for a period extending approximately from 1992 to 1997 (or 1998). The mother resides at Sudbury with her common-law spouse Daniel Rousseau. The father resides at London with his common-law spouse Lucia Catolino and her two children, Alexis Christie (16 years) and Jordan Christie (11 years).
[3] After the mother and father separated, a final order was made by Justice Michel on February 2, 1998 granting custody of the two children (Justin and Vincent) to the mother subject to reasonable access upon reasonable notice. The order also obliged the father to pay child support in the amount of $320.00 per month commencing on 1 January 1998. The child support was based on the father's gross annual income of $22,608.00 and in accordance with the Child Support Guidelines, O. Reg. 391/97, as amended.
[4] Justice Michel's order was changed by an order made by Justice Humphrey on 14 February 2006. The father was given custody of the two children with reasonable access upon reasonable notice to the mother (in the presence of her parents). Child support was terminated and any outstanding arrears deemed to be nil.
[5] The two children resided with the father for a period exceeding five years following which each returned to live with the mother at different times as follows:
Justin returned to live with his mother in December 2010. In April 2012, he returned to live with his father until early November 2012. Justin turned 18 on 23 April 2012. He is now on his own and lives independently;
Vincent returned to live with his mother starting in late August or early September 2011. He had been staying with his mother during the summer 2011 access period. After the summer access period, he never returned to reside with his father.
[6] The mother brought a motion to change on 29 September 2011 asking for custody of both children, access to be supervised in accordance with each child's wishes, child support with payments to start on a date to be determined and costs.
[7] The father filed a response on 30 January 2012. He asked for access to Vincent every second weekend and for longer periods throughout the year commensurate with various holidays including Easter, March break, Christmas and summer vacation. He disclosed his annual income at $76,334.00 and referred to paying child support on behalf of the child Vincent in the monthly sum of $714.00. The father also set out a comprehensive financial schedule showing estimated travel costs that he would be incurring in exercising access. He rounded out the costs at $400.00 per month. As the matter progressed, the father confirmed his intention to advance the argument of "undue hardship".
[8] On 14 December 2012 (hearing date), the father confirmed the following:
The issue of custody and access was resolved. He would no longer be asking for specified access;
The issue of "undue hardship" would not be argued;
The issue of "travel costs" would no longer be in play;
On a "go forward" basis, an agreement to pay child support on behalf of the child, Vincent in the monthly sum of $526.00 based on projected gross annual income for 2012 of $57,876.00;
There be no arrears.
[9] A number of relevant financial factors came to light on the trial date including the father's purchase of a truck in June 2011 resulting in a $28,000.00 debt as well as credit card debt and bank debt.
[10] Surprisingly, on the trial date, the father's financial statement sworn on 11 December 2012 showed net worth of $9,424.00 whereas his earlier statement sworn on 14 January 2012 showed a net worth of $49,000.00.
[11] The father was ordered to pay child support for the two children (Justin and Vincent) from 1 September 2011 to 1 April 2012 in staggered amounts commensurate with his income and in accordance with the Child Support Guidelines. He was then ordered to pay child support on an ongoing basis for the child Vincent, in staggered amounts commencing on 1 May 2012 commensurate with his gross income and in accordance with the Child Support Guidelines. He was also ordered to pay $100.00 monthly toward arrears until Vincent's eligibility for child support ceased, at which time the amount of the monthly payment of arrears increased to the amount he had been paying in child support for the child Vincent.
[12] The mother's claim for costs is partially based on the father's refusal to sign "minutes of settlement" prior to the trial starting. Mr. Gardner, representing the wife, invited the court to treat the "minutes" as an offer under rule 18 of the Family Law Rules, O. Reg. 114/99, as amended.
[13] The court must exercise caution in accepting and categorizing "minutes of settlement" signed by one party as an "offer to settle" under the rules. The father advised that he chose not to sign the "minutes" largely because the "minutes" referred to lump-sum arrears, with the quantum of which he did not agree.
[14] The court remains mindful that the father represented himself. The "minutes" were never clearly referred to as an "offer to settle" within the rules. There is no clear indication that the "minutes" were "served" upon the father as would be an "offer to settle" to be relied upon under rules.
[15] It is quite clear that no brief, evidence or statement made at a settlement conference is to be disclosed unless in an agreement reached at a settlement conference or an order. There is no exception for the offers to settle in a settlement conference brief to be disclosed in submissions for costs. See Entwistle v. MacArthur, 157 A.C.W.S. (3d) 773, [2007] W.D.F.L. 4904, [2007] O.J. No. 1958, 2007 Carswell Ont 3149 (Ont. Fam. Ct.). Similarly, minutes of settlement are arrived at further to negotiations between the parties. If the minutes are not perfected, they ought not be treated as an offer to settle absent the clearest of circumstances. Moreover, because the father is self-represented, the court would be requiring strict adherence to rule 18 if dealing an offer to settle.
[16] Therefore the cost issue shall be dealt with on the basis that there does not exist an offer to settle.
[17] Modern cost rules reflect a variety of purposes:
Indemnity
Controlling behaviour by discouraging frivolous suits or meritorious defences
To promote and encourage settlements
See paragraph [22] of Fong v. Chan, 46 O.R. (3d) 330, 128 O.A.C. 2, 181 D.L.R. (4th) 614, [1999] O.J. No. 4600, 1999 Carswell Ont 3955 (Ont. C.A.).
[18] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Carswell Ont 2475, confirmed 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.
[19] In the decision of Skramrud v. Skramrud, 163 A.C.W.S. (3d) 269, [2008] O.J. No. 130, 2008 Carswell Ont 135 (Ont. S.C.), the fixing of costs does not begin or end with the calculation of hours multiplied by rates. 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. The expectation of the parties concerning the amount of costs is also a relevant consideration.
3: POSITION OF THE PARTIES
3.1: The Wife
[20] Mr. Jerome Gardner represented the wife. He is an experienced lawyer in family law. He was called to the Bar in 1994. He submitted a bill of costs based on an hourly rate of $275.00.
[21] Mr. Gardner's bill of costs reflects services provided from 26 September 2011 to 27 March 2013 and totals $5,395.00, plus HST of $701.35 and disbursements of $269.52 for a grand total of $6,365.87.
[22] I have considered Mr. Gardner's bill of costs. The hourly rate used is ballpark correct for a lawyer of his vintage. The bill of costs is specific in terms of time spent. Generally speaking, the bill of costs as submitted appears to be acceptable.
3.2: The Husband
[23] Mr. Lapointe was very forthright in indicating that he is not seeking costs. He did submit a bill of costs prepared by Mackenzie Lake Lawyers from London. The bill of costs did not reflect work done with respect to this trial matter. These costs were incurred by Mr. Lapointe in the context of other family-related work and represent money he expended between September 2011 and January 2012. In a general sense, the only relevance of these costs is that they form part of Mr. Lapointe's overall financial commitments.
4: ANALYSIS
[24] Under subrule 24(1) of the Family Law Rules, there is a presumption that a successful party is entitled to the cost of a case except in child protection cases and in matters in which a governmental agency is involved. Under subrule 24(10), costs are to be determined and fixed at each step of the case.
[25] Having reviewed my reasons for judgment released on 18 December 2012 as well as submissions made by Mr. Gardner and Mr. Lapointe, I shall take the following factors into consideration in arriving at a decision on costs:
(1) the mother's cost submission and draft bill of costs are reasonable;
(2) the father submitted a bill of costs that is not related to the proceedings but may only be taken into account in looking at his overall personal financial obligations;
(3) neither party behaved unreasonably at trial;
(4) the mother was successful in her application seeking child support and arrears;
(5) in preparing for trial, the mother's counsel did not know that the father would abandon his position on the issue of undue hardship and other expenses;
(6) the quantum of "arrears", although significant, has been lessened by virtue of the commencement date when support was ordered to start; and
(7) the father, in his submissions, indicated that he was satisfied with the decision both in terms of child support, the duration thereof and arrears.
[26] The court has discretion in deciding the matter of costs to inquire into the circumstances of each case. In family law cases, many factors may be relevant in deciding whether to order costs, including a strong policy in favour of the parties settling their own affairs when possible. Taking into consideration rule 24, I am satisfied that the mother is entitled to some costs. I must at the same time remind myself that, although under rule 24 "success" is the starting point in determining the issue of costs, other factors, some of which have been noted above, must also be carefully considered.
[27] The final decision (as discussed at the cost hearing) did not mention three payments made by the father in the amount of $714.00 each. Mr. Gardner was kind enough to indicate that he would be forwarding a letter to the Family Responsibility Office in order to explain the oversight and ensure that the father obtain a proper credit.
5: DECISION
[28] There shall be an order for costs in favour of the mother on partial indemnity basis only. In settling the amount of costs, I have considered the importance and complexity of the issues as well as the reasonableness of each party's behaviour. This is not a case where the court could find bad faith on either side.
[29] This case requires a balanced approach on the issue of costs. The father's position on the issue of retroactivity and quantum of child support were not totally unreasonable. From his viewpoint, he has achieved some success. The arrears generated by my decision are not as significant as he had envisioned at the commencement of the trial.
[30] In the court's view, it is just in all of the circumstances to award the mother costs on recovery of approximately 40% of her solicitor-and-client costs. The court has taken into account the rules including a presumption of costs in favour of a successful litigant. The court has also injected flexibility in the mix by measuring the cost recovery against the backdrop of all relevant circumstances including the father's ability to pay.
[31] Therefore, costs shall be awarded to the mother in the fixed sum of $2,500.00 plus disbursements totalling $269.52 (including HST on disbursements) for a total of $2,769.52. Therefore the total costs awarded to the mother shall be $2,769.52 payable within 120 days. The costs for purposes of enforcement may be considered as child support arrears.
Released: 17 July 2013
Signed: "Justice Randall W. Lalande"