Court File and Parties

Court File No.: F1484/16-00FD Date: July 10, 2019 Superior Court of Justice – Ontario Family Court

Re: Mary Ellen Hall, applicant And: Christopher Douglas Clifford Hall, respondent

Before: MITROW J.

Counsel: Denis Burns for the applicant William Clayton for the respondent

Heard: written submissions filed

Endorsement on Costs

[1] I have reviewed the written costs submissions from both parties pursuant to my order dated April 16, 2019, where the sole issue was the applicant’s claim for interim spousal support.

[2] The interim spousal support order was for $8,000 per month commencing November 1, 2018 (with a small credit to the respondent for the first payment).

[3] The applicant served two offers. The first offer accompanied the applicant’s motion and included a provision that interim spousal support would be $8,000 per month commencing November 1, 2018; a second offer, served by the applicant the day before the motion was argued, included a provision reducing the interim spousal support to $6,000 per month commencing November 1, 2018.

[4] The respondent served one offer on the day prior to the motion being heard, providing for interim spousal support of $2,500 per month commencing February 1, 2019.

[5] The applicant was successful and is presumptively entitled to costs.

[6] The applicant seeks full recovery of her costs in the amount of $14,569.19 inclusive of fees, disbursements and HST, with the fees portion being $12,426.50.

[7] The respondent submits that a fair and reasonable amount for him to pay is $7,500 plus HST.

[8] The applicant submits that both offers engage r. 18(14) of the Family Law Rules; in particular, the applicant relies on her first offer, served at the outset, to claim full recovery of costs.

[9] For convenience, I set out r. 18(14):

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER (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 The offer does not expire and is not withdrawn before the hearing starts.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.

[10] Each offer submitted by the applicant deals with costs. The costs provisions in each offer are not severable from the other portions of the offer.

[11] The respondent submits that neither offer falls within r. 18(14) because of the reference to costs in each offer.

[12] The respondent relies on the decision of Pazaratz J. in Chomos v. Hamilton, 2016 ONSC 6232 (Ont. S.C.J.), with which I respectfully agree, where the court states at paras. 24 and 29:

24 An offer to settle substantive terms which also includes a predetermination of costs perverts the Rule 18(14) analysis, because the party ends up trying to claim credit for accurately predicting a costs determination a judge has not yet made.

29 Rule 18(14) contemplates full indemnity for costs where all of the terms of an offer have been obtained in the trial judgment. An offer which includes costs obligations not yet determined by the court, cannot satisfy the strict requirements of this section.

[13] In the present case, the condition imposed by paragraph 5 of r. 18(14) requires the court to compare the order with the applicant’s offers; the order does not deal with costs and therefore the offers cannot meet the condition in paragraph 5.

[14] Further, in Shelley v. Shelley, 2019 ONSC 608 (Ont. S.C.J.), at para. 44, I reached a similar conclusion that, where an offer deals with costs, then the condition in r. 18(14) paragraph 5 is not met.

[15] Also, both of the applicant’s offers deal with spousal support for the period June 2018 to October 2018, which was not part of the order and, for that reason, also would not meet the condition in paragraph 5 of r. 18(14).

[16] That said, however, the quantum of interim spousal support that was ordered for the period starting November 2018 was the same as the applicant’s first offer and was $2,000 more than the applicant’s second offer.

[17] Hence, both of the applicant’s offers are factors to consider even if the conditions in r. 18(14) are not met: see r. 18(16) of the Family Law Rules.

[18] An overriding principle in fixing costs is reasonableness: Davies v. Clarington (Municipality), 2009 ONCA 722 (Ont. C.A.), at para. 52.

[19] In fixing costs, r. 24(12) of the Family Law Rules requires the court to consider reasonableness and proportionality in relation to a number of factors. Therefore, the rule makes clear that reasonableness and proportionality are the “touchstone considerations to be applied in fixing costs”: Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.), at para. 12. Even when “full recovery costs” are ordered, their quantification remains subject to reasonableness and proportionality: Jackson v. Mayerle, 2016 ONSC 1556 (Ont. S.C.J.), at para. 91.

[20] I have considered the factors in r. 24(12). Although no issue was taken by the respondent as to Mr. Burns’ hourly rate, the respondent does object to the time spent in preparing a factum, on the basis that facta were not required in the circumstances. I find there was some complexity to the financial issues and that the preparation of a factum, although not mandatory, was reasonable and appropriate in the circumstances and was of assistance to the court. Accordingly, some time for the preparation of the factum should be allowed.

[21] Although the applicant has characterized the respondent’s position on the motion as amounting to unreasonable conduct, I do not make that finding. In the circumstances, the respondent was entitled to advance his theory of the case as it relates to interim spousal support and, although he was unsuccessful on the motion, he did not act unreasonably.

[22] I find that the amount of $11,500 for costs, inclusive of fees, disbursements and HST, is fair and reasonable. The respondent is ordered to pay that amount within 30 days. This costs order constitutes a “support order” within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996.

“Justice Victor Mitrow” Justice Victor Mitrow Date: July 10, 2019