Court File and Parties
Court File No.: D56415/12 Date: 2015-08-20
Ontario Court of Justice
Between:
C.L.B. Acting in Person Applicant
- and -
A.J.N. Respondent
Counsel: Allyce B. Mutungi, for the Respondent
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
[1] On July 24, 2015, the court released its endorsement regarding the parties' motions to change the order of this court dated October 9, 2013. The respondent (the father) was granted custody of the parties' seven-year-old child. The mother was granted specified access. The mother was also ordered to pay the father child support of $360 per month.
[2] The court gave the parties the opportunity to make written costs submissions. The father made submissions and seeks costs of $11,649.70. The mother did not make submissions.
[3] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.) 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.
[4] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law 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, [2000] O.J. No. 330 (SCJ- Family Court). 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, [2008] O.J. No. 1978 (SCJ).
[5] Subrule 18(14) 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:
If the offer relates to a motion, it is made at least one day before the motion date.
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.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[6] The father made an offer to settle the parenting issues dated May 26, 2015. He did not make an offer to settle the financial issues. The mother did not make an offer to settle.
[7] The father's offer met the conditions under subrule 18(14). The mother should have accepted it.
[8] At the hearing, the father asked for an order that the mother pay the table amount of support, based on her income, pursuant to the Child Support Guidelines. The mother sought a shared parenting schedule. She proposed that the father pay her the set-off amount of the parties' respective guidelines table amounts, based on an imputed income to him of $60,000 per annum and an income attributed to her of $21,000 per annum.
[9] The court ordered the mother to pay the table amount of support, based on her income.
[10] The father was the successful party on the motions to change. The presumption that he is entitled to costs was not rebutted.
[11] In making this decision, the court considered the factors set out in subrule 24(11), 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.
[12] The case was important for the parties. It was not complex or difficult.
[13] The father's behaviour was reasonable in the case. The mother's failure to make an offer to settle was not reasonable behaviour. See: Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774, [2009] O.J. No. 6370 (OCL). The mother was assisted by counsel during the case and at the hearing. Being self-represented does not excuse her failure to make an offer.
[14] The father's lawyer's rates are reasonable for a lawyer with 20 years experience.
[15] A review of the father's lawyer's bill of costs indicates that time is being claimed for prior steps in the case. Subrule 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, [2005] O.J. No. 5715 (OCJ). The court 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. However, a party 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. The party should also be able to claim, at this stage, time spent preparing for and attending disclosure meetings at the Office of the Children's Lawyer.
[16] The court considered the mother's ability to pay costs. See: MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.). 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. See: Snih v. Snih pars. 7-13. The mother earns close to $40,000 per annum. Payment of a costs order in addition to her child support obligations will be difficult for her. She will be entitled to repay the costs over time to reduce any financial hardship to her.
[17] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] O.J.No. 2634 (Ont. C.A.) and Delellis v. Delellis and Delellis, [2005] O.J. No. 4345. 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.
[18] Taking into account all of these considerations, an order shall go as follows:
a) The mother shall pay the father's costs of this motion fixed in the amount of $7,500, inclusive of fees, disbursements and H.S.T.
b) The mother may repay these costs at the rate of $250 per month, starting on October 1, 2015. However, if she is more than 30 days late in making any support or costs payment, the entire amount of costs remaining owing shall immediately become due and payable.
Justice S.B. Sherr
Released: August 20, 2015