Court File and Parties

Court File No.: 298/89 Date: April 30, 2012

Ontario Court of Justice

Re: Nancy Warzonek and Jonathan Wesley Gourlay

Before: Justice R. Zisman

Counsel:

• Mary Warzonek, self-represented
• David Cameletti, for the Respondent

Heard: By written submissions

Costs Endorsement

Background

[1] The father brought a motion to change the final orders of Justice Fuller dated February 27, 1990 and July 7, 1992 to terminate his support obligation to his daughter Emily as of June 30, 2007 and that any support arrears be rescinded. The mother was agreeable to child support being terminated as of May 1, 2009 but was seeking that all of the accumulated arrears, being $22,706.86[1] be paid by the father.

[2] I released my decision on January 17, 2012 and found that child support should be terminated as of February 1, 2008 and rescinded all arrears.

[3] The parties were requested to make submissions as to costs. Counsel for Mr. Gourlay filed his submissions and then Ms Warzonek filed her responding submissions. Counsel for Mr. Gourlay requested permission to file a reply because of a factual error in Ms Warzonek's submissions and then Ms Warzonek was given a further opportunity to file further submissions. I have now reviewed all submissions and this is my ruling on the issue of costs.

Success of the Parties

[4] It is clear that the respondent ("father") was the more successful party in this proceeding. He was fully successful on the issue of rescinding the arrears and he was successful on the issue of terminating his support obligation although at a date that was about seven months later than he requested. However, the issue of when his support obligation should be terminated was based on a factual determination that was not clear until the evidence was heard.

[5] The applicant ("mother") does not appear to dispute this in her submissions. Although even this is not abundantly clear as a portion of her cost submissions summarizes decisions in various cases where the court did not rescind arrears.

[6] The father is seeking costs of the trial and also for an aborted settlement conference that did not proceed on August 23, 2011, the issue of costs being reserved to the trial judge. He seeks total costs and disbursements, on a partial indemnity basis, of $7,601.27 plus applicable taxes.

[7] The mother disputes that she should be responsible for costs of the aborted settlement conference as she advised the father's counsel that she would be seeking an adjournment and therefore he did not have to attend. She also submits that she acted in good faith in the litigation and does not have the financial resources to pay costs.

Aborted Settlement Conference

[8] The mother sent an email to father's counsel on Monday April 25th, 2011 at 4:29 p.m. (which was Easter Monday) raising the issue of the possibility of her seeking a consent adjournment of the settlement conference scheduled for April 27th to be rescheduled for May or June but if not, then she was prepared to proceed. The email indicated that she wished to consult a family lawyer to prepare her brief. The mother followed up with a telephone call on the morning of the settlement conference. It is therefore her position that father's counsel and his client were both aware that she had not prepared her settlement conference brief and was not able to proceed and that they did not need to attend court.

[9] It is submitted by father's counsel that he was not in his office on Easter Monday and out of the office on Tuesday April 26th and could not get instructions from his client until the morning of the settlement conference at which time his client was not prepared to agree to an adjournment.

[10] The mother was served with the father's disclosure and settlement conference brief on April 16th, 2011. The date for the settlement conference was fixed at the case conference on February 22, 2011.

[11] At the settlement conference the mother requested an adjournment to retain counsel which was granted. However, the court noted her late notice of the request for such an adjournment, the ambiguity in her email request for the adjournment and her lack of compliance with the disclosure order. Costs were reserved.

[12] Family Law Rule subrule 17(18) provides that a court shall order costs of a conference if a party is unprepared to proceed. The mother was clearly not prepared to proceed with the settlement conference in that she had not filed a brief, not made an offer to settle and she had not provided the court ordered disclosure.

[13] In view of the late notice of her request for an adjournment, and the confusion in her request and her lack of financial disclosure, it was reasonable for father's counsel to attend. It was important for him to draw the court's attention and seek directions from the court regarding the issue of non-disclosure and delay. I also note that the endorsement indicates that the mother was requesting an adjournment to obtain counsel but on the return date of the settlement conference the mother was self-represented.

[14] The father's counsel is only seeking costs for four hours for his attendance at the settlement conference which includes his travel time and the time waiting for the matter to be reached. I consider this to be a reasonable request.

General Principles Regarding Costs

[15] As I have determined that the father as the successful litigant, he is entitled to his costs pursuant to subrule 24(1). I was not advised of any Offer to Settle being served.

[16] I am mindful of the comments made in Boucher v. Public Counsel (Ontario) that in fixing costs the court does not begin and end with the calculation of the hours spent times the lawyer's hourly rate but rather the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.

[17] I have considered the factors enumerated in subrule 24(11), namely:

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] I am fixing costs in the amount of $7,000.00 inclusive of disbursements and applicable taxes. I have considered the following factors in fixing this amount:

1. Success of the Father

The father was the successful party on this motion and is also entitled to costs for the aborted settlement conference.

2. Complexity and Importance of Issues

The issues were not overly complex but did require disclosure for a considerable number of years for both the issue of the arrears and also regarding Emily's school attendance. The issues were important to both parties. The mother's delay and lack of providing disclosure made the proceedings difficult to settle for the father and made a trial inevitable. The issue of the alleged arrears from 1994 to 2003 was raised by the mother and was somewhat unique as the issue related to arrears accumulated pursuant to a court order and the role of not just the mother but the Family Responsibility Office in not enforcing that order. This issue did require father's counsel to spend extra time researching the issue of laches and reviewing the cases produced by the mother which she then did not refer to in her submissions.

3. Reasonableness of Each Party's Conduct

The father acted reasonably in the proceedings once he obtained some disclosure about when Emily was in school and the courses she took, he revised the position he had originally taken in his pleadings. The mother waited until the father commenced his Motion to Change to seek retroactive arrears, she did not comply with disclosure orders and in final submissions raised an issue of seeking arrears not just based on the court order but seeking that the court impute income to the father. Some of the mother's actions were as a result of her lack of legal knowledge but in other instances she would not even concede facts she had previously admitted. For example, despite advising the Family Responsibility Office that Emily was not in school and not entitled to child support from February to August 2008, she would not concede this point at trial.

4. Lawyer's Rates and Time Spent

Father's counsel was called to the bar in 1986. On a substantial indemnity basis, his hourly rate is $300.00. On a partial indemnity basis, he is only seeking $225.00 per hour. This is a reasonable rate. Counsel has provided a detailed Bill of Costs indicating he spent 32.9 hours in preparation and attendance for the trial management conference, preparation of the trial record and document brief, his attendance at the aborted settlement conference and for the one and a half days for the trial. The time spent is reasonable. The disbursement cost of $198.78 is reasonable and includes the usual charges for a process server to serve and file materials. In considering if the father's counsel's fees are reasonable, I have also considered that the mother submitted that she paid the lawyer she consulted $7,000.00.

5. Financial Ability of the Mother to Pay Costs

The other factor to be considered in this case is the financial ability of the mother to pay costs. According to the tax returns filed by the mother she earns about $63,000.00 per year. The mother in her submissions indicated that she paid $7,000.00 in legal fees for consulting with counsel throughout these proceedings. The mother asks the court to take judicial notice of how the recent federal and provincial budgets have affected her employer Sheridan College and that the college is in a constant state of restructuring and that she has no job security. She points out that her union was on strike for 19 days in September 2011 and she received no pay for those days and only received a 1.9% pay increase. She also submits that she continues to assist her daughter even though she is no longer in school and is in the process of having to remortgage her home to meet her debts. She has no significant savings. Although a party's financial circumstances are a consideration they do not absolve an unsuccessful party from all responsibility to pay the legal costs to the successful party. In this case, the mother needed to consider the cost consequences of continuing this litigation and proceeding to trial. She is presently employed, despite her concerns about the future stability of her employment. I find that her financial circumstances are not so dire that she cannot pay an order of costs.

Order

[19] Therefore, there will be an order that the Applicant, Mary Warzonek, pay the Respondent, Jonathan Wesley Gourlay, costs of $7,000.00. Such costs to be paid within 60 days.

Justice R. Zisman

Date: April 30, 2012

Footnote

[1] This was the initial amount of arrears as calculated by the Family Responsibility Office. Enforcement was suspended in May 2009 when Ms Gourlay advised the Family Responsibility Office that Emily was no longer in school. The arrears at the time of the hearing were $15,959.64.