Court File and Parties

Date: August 10, 2017

Court File No.: D46108/08

Ontario Court of Justice

Re: S.O. – Applicant

And: E.A. – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Lance Carey Talbot – for the Applicant
• Stella Iriah Anaele – for the Respondent

Heard By: Written submissions

Costs Endorsement

Introduction

[1] The issue of costs arises out of a Motion to Change by the Respondent to change the Order of Justice Brownstone dated June 26, 2009 that was heard before me on March 23, 2017. The Respondent had been noted in default of the proceedings in 2009. On this Motion to Change the Respondent sought to terminate his child support obligation and rescind all arrears on the basis that he was never served with the Application. The Respondent also sought an order for joint custody and primary residence on the basis that the child told him that she wished to reside with him. Although granted leave to bring a motion to appoint the Office of the Children's Lawyer, the Respondent never brought such a motion. The submissions on the Motion to Change focused on the setting aside of the default order.

[2] My decision was released on March 29, 2017. I dismissed the Respondent's Motion to Change but varied the order of the June 26, 2009. It was the Applicant's position that if the court varied the June 26, 2009 order such a variation should be based on the Respondent's actual income for the years that he produced proof of his income and for the years 2009 and 2011 for which he produced no proof that the income of $60,000 be imputed to him in accordance with the June 26, 2009 order. The decision varied the order in accordance with the Applicant's position. Therefore the Applicant was successful on all issues. The decision indicated that if costs were being sought counsel for the Applicant should provide brief written submissions as to costs within 30 days and any response should be served and filed 30 days later.

[3] However after the decision was released, counsel for the Respondent submitted a Form 14B requesting that the court "reconsider the terms of the order of March 29, 2017 due to hardship which the Respondent would suffer as a result of the imputed income". Counsel also attempted to introduce proof of the Respondent's income for the years that he had previously not provided any proof.

[4] On April 25, 2017 I released a written endorsement dismissing the Respondent's Form 14B and ordered costs of $452.00, as requested by the Applicant's counsel.

Position of the Parties

[5] Counsel for the Applicant filed a Form 14B with the court on June 5, 2017 seeking to file his costs submissions more than 30 days after the decision. He submitted that this was only a few days later than the decision of April 25, 2017 that finalized the matter.

[6] Although the Form 14B was on notice to counsel to the Respondent and faxed to her office, no response was received.

[7] As a courtesy to counsel for the Respondent, the trial coordinator contacted counsel to inquire if she would be sending in her response to the Applicant's costs submissions. Counsel for the Respondent then sent in her response on July 21, 2017.

[8] It is submitted by the Respondent's counsel that the court should not consider the Applicant's costs submissions as they are out of time and when the costs submissions were not received she assumed that the Applicant was not claiming costs. Further, she submits counsel did not request an extension of the time to file prior to its expiration. It is also submitted that the Form 14B is defective as it does not state what rule permits the filing of costs submissions a month after the due date for filing had expired and that a motion to re-open the case should have been requested.

[9] Counsel for the Respondent does not explain why she did not respond to the Applicant's Form 14B that implicitly requested an extension to file costs submissions. I do not find that the lack of stating the Family Law Rule that would permit late filing is fatal to the claim for costs. Counsel for the Respondent was aware that the request was being made and simply ignored it. It is probable that if the trial coordinator had not contacted counsel's office she would have not filed any response at all. Nor do I accept the submission that counsel for the Applicant should have requested to re-open the case.

[10] It is understandable that the Applicant's counsel would have considered that the time for the filing of his costs submissions would begin after the further decision of the court on April 25th and not after the decision of March 30, 2017. Although it would have been preferable for counsel to seek clarification from the court as to the filing timetable for the costs submissions or if he had sought an extension prior to the deadline, I see no prejudice to the Respondent or that this error by the counsel for the Applicant should deprive the Applicant of her entitlement to costs.

[11] With respect to the actual cost submissions, counsel for the Applicant seeks costs of $4,902.00 being the amount billed to Legal Aid. Counsel did not provide a Bill of Costs and simply states that he spent 27 hours on the proceeding and also submits that not all of the time related directly to the preparation and argument of the motion. Counsel also seeks an order that the costs be paid directly to legal aid.

[12] With respect to the merits, counsel for the Respondent submits that there was mixed success as the order was varied by permitting the child support to be based on the Respondent's actual income for five out of eight years and there should be no order for costs.

[13] Neither counsel served an offer to settle.

Applicable Legal Principles

[14] Rule 24(1) of the Family Law Rules provides guidance on costs on a family law context. Rule 24(1) sets out the basic assumption that a successful party is entitled to costs. This provision still permits a court broad discretion in determining if costs should be paid, by whom and in what amount.

[15] I find that the Applicant was the successful party. The evidence and submissions were focused on the Respondent's position that he was never served with the originating Application and that the order should be set aside and all arrears rescinded. The court did not accept this submission so the Applicant was successful on this issue.

[16] When the court inquired as to the Respondent's position if the court varied the order instead of setting it aside, it was the position of counsel that the Respondent should get credit for the funds he paid and that his support obligation should only commence in 2015. The court did not accept this position as there was insufficient evidence as to funds paid by the Respondent and there was no basis for support to only commence as of 2015. Therefore, the Applicant was also successful on this issue.

[17] Rule 24(11) provides a further list of factors a court should consider in dealing with costs:

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 behavior in the case;

c. the lawyer's rates;

d. the time properly spent on the case, including conversations between the lawyer and the party, 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.

[18] In Serra v. Serra, the Ontario Court of Appeal, at paragraph 8 of the decision, confirmed that costs rules are designed to foster three important principles:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behavior by litigants.

[19] I am also mindful that the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Counsel, the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

[20] Subsection (b) of Family Law Rule 24(11) relates to the reasonableness of each party's behavior in a case.

[21] In considering if a party acted reasonably, Family Law Rule 24(5) directs the court to consider if a party served made an offer to settle and the reasonableness of any offer to settle.

[22] In this case, surprisingly, neither counsel served an offer to settle.

Application of Legal Principles to the Facts

[23] In determining the amount of costs, I have considered the legal principles and the following factors as set out in Rule 24(11) as follows:

a) The Importance, Complexity or Difficulty of the Issues

[24] This motion was somewhat complex as there is a considerable amount of case law with respect to setting aside an order that was obtained on default. The motion was very important to both parties in view of the financial consequences.

b) The Reasonableness or Unreasonableness of Each Party's Behavior in the Case

[25] The Respondent was unreasonable and his conduct required several unnecessary attendances. Despite proof being filed that the child had consistently resided with the Applicant, the Respondent still insisted that the child had been in the care of a local Children's Aid Society. The Respondent did not fully comply with the outstanding disclosure order and then after the motion was argued attempted to adduce further disclosure that the court had found was missing from his motion materials. In the Respondent's affidavit sworn March 10, 2015 he deposed that he had contacted Canada Revenue Agency to obtain a copy of his 2011 Notices of Assessment or Notices of Re-Assessment and would file it upon receipt but as of the date that this motion was argued on March 23, 2017 he had still not provided his Notices of Assessment or Notices of Re-Assessment. Despite the onus being on the Respondent to prove that he had not been served with the originating Application he took no steps to summons the process server or question him even though he had the process server's contact information.

c) The Lawyer's Rates

[26] Counsel for the Applicant provided no information about his year of call to the Bar or his hourly rate. It is certainly not sufficient to simply indicate the amount he billed to legal aid. There is well settled law that the receipt of legal aid is not a factor in determining costs and counsel should have submitted his Bill of Costs based on his usual hourly rate.

d) The Time Properly Spent

[27] Counsel for the Applicant simply states he spent 27 hours but that this time also included time for prior attendances. The decision clearly indicated that counsel was to provide not only submissions as to costs but a Bill of Costs. The motion judge should not deal with requests for costs that were addressed or should have been addressed at prior steps in the case. Therefore, in order to determine the appropriate amount of costs related to the motion before the court, counsel must provide a Bill of Costs, it is not acceptable for counsel to request costs without submitting a detailed Bill of Costs that clearly sets out the time spent for each task.

e) The Expenses Properly Paid and Payable

[28] Again nothing is clearly set out or claimed as there is no Bill of Costs.

f) Any Other Relevant Matter

[29] Counsel for the Applicant requests an order that costs be payable directly to the Ontario Legal Aid Plan. It appears from this case and other recent cases, that legal aid is requesting that counsel in receipt of a legal aid retainer made this submission to the court.

[30] The court should not be involved in making arrangements for payments to third parties. The Applicant can execute an irrevocable direction or assignment of costs and deliver it to the Respondent and his counsel. Subsection 46(4) of the Legal Aid Services Act states that all costs ordered by a court to be paid to an individual who has received legal aid services are the property of the corporation and shall be paid to that corporation.

[31] I would add that counsel who represents a party who is in receipt of legal aid and is entitled to costs should be vigorously pursuing a cost order in the same manner as counsel would be doing for parties retained pursuant to a private retainer and providing the court with the necessary information to make a fair and reasonable order.

[32] I find that a fair and reasonable cost order for a motion of this nature without any further information and that is proportionate to the issues involved in all of the circumstances is $1,000.00.

Order as Follows

1. The Respondent shall pay to the Applicant costs fixed at $1,000 inclusive of disbursements and applicable taxes.

2. The Family Responsibility Office shall enforce this order as a support order.

3. Support Deduction order to issue.

4. Counsel for the Applicant shall prepare this order and the approval of the Respondent as to form and content is hereby dispensed with.

Justice Roselyn Zisman

Date: August 10, 2017