Court File and Parties

Court File No.: D49312/09 Date: 2016-10-31

Ontario Court of Justice

Between:

Abiola Abeni Oduwole Acting in Person Applicant

- and -

Troy David Moses Respondent

Counsel: Dion R. McClean, for the Respondent

Heard in Chambers

Justice: S.B. Sherr

Costs Endorsement

Part One - Introduction

[1] On September 26, 2016, the court released its reasons for decision related to a trial about the respondent's (the father) child support obligations for the parties' two children (the children).

[2] The court ordered the father to pay the applicant (the mother) $14,688 for retroactive child support. The father was ordered to pay the mother ongoing table child support of $1,075 each month, $87 each month for his proportionate share of the children's special expenses pursuant to section 7 of the Child Support Guidelines (the guidelines) and 50% of his younger child's cheerleading program, if she attends this program.

[3] The parties were given until October 18, 2016 to make written submissions if they were seeking costs and until October 28, 2016 to respond to a costs submission of the other party.

[4] The mother filed her costs submissions within the timeline provided. She seeks costs of $7,611.17.

[5] The father filed written costs submissions on October 28, 2016. He seeks costs of $5,100. His request for costs was submitted out of time and no explanation was provided for this. Once he missed his filing deadline to seek costs, he was only permitted to respond to the mother's costs submissions.

[6] The father's lack of adherence with court-ordered timelines was consistent with his litigation behaviour. For reasons set out below, he would not have been awarded costs, even if he had filed his submissions in time.

Part Two – Legal Considerations

[7] The 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.

[8] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are to 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. 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.

[9] Subrule 2(2) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. Subrule 2(4) states that counsel have a positive obligation to help the court to promote the primary objective under the family law rules. Clauses 2(3)(a) and (b) of the rules set out that dealing with a case justly includes ensuring that the procedure is fair to all parties and saving time and expense. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711.

[10] 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:

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.

[11] Even if subrule 18(14) does not apply, the court has a discretion to take into account any written offer to settle, the date it was made and its terms when exercising its discretion over costs (subrule 18(16)).

[12] Subrule 24(6) states that if success in a step in a case is divided, the court may apportion costs as appropriate.

[13] Justice George Czutrin reviewed considerations for determining costs for self-represented litigants in Jordan v. Stewart, 2013 ONSC 5037:

a) A self-represented litigant does not have an automatic right to recover costs. The matter remains fully within the discretion of the trial judge. Moreover, self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity;

b) Parties who litigate against a self-represented person should not be able to ignore the potential for costs. The court retains the discretion to fashion an award of costs that is fair and reasonable in the circumstances of the case before it;

c) Where one party is represented by a lawyer and the other is not, the hourly rate that the represented litigant's lawyer is entitled to claim on an assessment of costs should inform the reasonable expectations of both parties as to the costs that they will likely be required to pay if unsuccessful. Otherwise, litigants represented by lawyers would be less circumspect with regard to their conduct and their response to the opposing party's efforts to settle because that party is a self-represented litigant.

d) It is near impossible to come up with an objective way of fixing an in-person party's hourly rate or the amount of time they spent, not at the court, doing what we might otherwise consider lawyer's work.

e) Ultimately, the overriding principle in fixing costs is "reasonableness".

f) Courts addressing costs should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case.

Part Three – Analysis of Success

3.1 The Father's Offer to Settle

[14] The father was the only party who produced an offer to settle in his costs submissions.

[15] The father served an offer to settle on the mother one hour before the start of the trial. This was much too late for the costs consequences set out in subrule 18(14) to apply.

[16] The court can still consider the father's offer under subrule 18(16).

[17] The father's offer was given little weight as it was served so late. Parties require a realistic time to process and make an informed decision about whether to accept an offer. Serving the offer one hour before the trial did not afford the mother a reasonable opportunity to do this.

[18] The father's offer was not more favourable than the final result. The father offered to pay $4,275 in support arrears – he was ordered to pay $14,688 by the court. The father offered to repay the arrears at the rate of $100 each month. The court ordered the father to pay the mother $6,000 towards the arrears by November 30, 2016 and $300 each month for the balance, starting on December 1, 2016. The father's offer to settle ongoing support matched the final order. However, he only produced his financial disclosure verifying his income on the first day of the trial.

[19] Ordinarily the failure to make an offer to settle would result in a discount of any costs claim. However, in this case, it was understandable that the mother did not make an offer as she was not provided the father's financial disclosure until the day of trial. She could not be expected to make a meaningful offer without knowledge of the father's income – there would be a risk that her offer would be for less than she was entitled to. The father was maintaining until the day of trial that he was only earning 70% of what he eventually revealed he was earning. If the mother had made an offer (that was accepted) based on the lower income, without financial disclosure, this would have led to an unjust result.

3.2 Positions at Trial

[20] At trial, the mother sought support retroactive to February 12, 2010. The father asked that the mother's claim for retroactive support be dismissed.

[21] The court ordered child support retroactive to August 1, 2015 and also granted significant claims for section 7 special expenses for the children that the father opposed.

[22] The mother was successful in defining section 7 expenses moving forward that were opposed by the father – particularly the younger child's cheerleading expenses.

[23] The parties agreed on ongoing table support at the outset of the trial.

[24] There was divided success on the support issues. However, while the mother's retroactive support claim was excessive, she was justified in coming to court. She obtained a sizeable retroactive support award.

[25] The court finds that the mother was more successful than the father.

Part Four – Considerations for the Successful Party

[26] 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.

[27] The case was important for the parties. There was some difficulty as there was a significant dispute regarding entitlement to section 7 expenses. The case was not complex.

[28] The father acted unreasonably by failing to meet the disclosure and filing requirements of the court. He was required to provide the mother his updated trial affidavit, financial statement and up-to-date pay stub by September 2, 2016. He failed to do this. He served this material just before the trial began. The mother was offered an adjournment. The court understands why she did not adjourn the case as it was a stressful experience for her and she wanted to end the matter. The father's conduct was very unfair to the mother.

[29] The father repeated this unreasonable conduct by making his own request for costs well after the timeline set by the court.

[30] The length of the trial was extended due to the father's conduct as it was only fair that the mother have the opportunity to respond orally to the father's affidavit that had just been delivered to her.

[31] The mother kept detailed records of the time she spent on this case. This was very helpful and the court reviewed her records carefully.

[32] The mother claimed considerable time attributable to 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. 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.

[33] However, the mother is not precluded from making a claim for time spent that is not discrete to a particular step in the case. Costs accrued from activity not specifically related to the step (not requiring judicial intervention) should be dealt with at the end and not by the motions judge. See: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98. This means that the court can consider the time the mother spent preparing her pleadings and financial statements, providing and reviewing financial disclosure and exchanging correspondence.

[34] The court notes that costs for the July 19, 2016 were reserved and properly claimed by the mother.

[35] The mother claimed time spent on the parenting issues in her bill of costs. That time won't be granted, as this hearing was only about the support issues.

[36] The court considered that the mother had to spend additional time trying to obtain financial disclosure from the father.

[37] The mother had to spend considerable time preparing for the hearing. She did a good job. She was prepared and organized. The mother spent time researching court procedure and the legal tests she had to meet. She delivered comprehensive documentation – on time.

[38] The court recognizes that the mother depleted vacation days preparing for and attending at the hearing.

[39] The court also considered that time was wasted as the mother was overly aggressive in her retroactive support claim and the father had to respond to that claim.

[40] The court considered the father's ability to pay the costs order. See: MacDonald v. Magel. The court finds that he has the ability to pay the costs that will be awarded.

[41] The court 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.

[42] The dominant consideration in this costs analysis is the father's litigation behaviour. He did not comply with the court's financial disclosure order and filing timelines. He delivered his disclosure and trial affidavit to the mother one hour before trial, together with an offer to settle for the first time. He only revealed his true income at that time. He did not comply with the court's direction regarding costs submission.

[43] A clear message needs to be sent that such behaviour will not be tolerated by the court.

Part Five – Conclusion

[44] Taking into account all of the considerations set out above, an order shall go that the father pay the mother's costs fixed in the amount of $3,500, inclusive of fees and disbursements. The father shall pay the mother these costs by December 31, 2016.

[45] The father's claim for costs is dismissed.

Released: October 31, 2016

Justice S.B. Sherr