Court File and Parties
Court File No.: F 295/10 Date: 2012-07-25
Ontario Court of Justice
Re: Richard Mitchell and Lara Lynn Carson
Before: Justice R. Zisman
Counsel:
- Applicant, Richard Mitchell – Self-represented
- Monica Lipson, for the Respondent
Costs Endorsement
[1] Background and Trial
A four day trial in this matter was held from March 19 to 22, 2012. The main issues were custody and access and although the issue of child support was before the court it was not strenuously pursued by the respondent ("mother"). The respondent was successful on the trial and as such is seeking costs.
[2] Respondent's Costs Claim
The respondent seeks costs on a substantial indemnity basis for the period just before the trial and for the trial proper. The respondent attached a Bill of Costs to her cost submissions seeking costs for services from December 19, 2011 to March 22, 2012 totaling $3,599.98 including HST for 37.20 hours at the rate of $85.512 per hour. The respondent served an Offer to Settle prior to trial offering joint custody with primary residence to the respondent and offered the applicant ("father") access on alternate weekends and holiday access in accordance with the recommendations of the Office of the Children's Lawyer. With respect to child support the respondent was to pay child support in accordance with his income and pursuant to the Child Support Guidelines. The applicant made no offer to settle.
[3] Applicant's Response
The applicant was served with the respondent's Bill of Costs and written submissions as to costs on June 2, 2012 and has not filed any response.
[4] Legal Framework – Family Law Rules
Rule 24 of the Family Law Rules, O. Reg. 114/99 provides guidance on costs in a family law context. Rule 24 (1) sets out the basic assumption that a successful party is entitled to costs. Rule 23 (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.
[5] Principles Underlying Costs Rules
In Serra v. Serra 2009 ONCA 395, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
to partially indemnify successful litigants for the cost of litigation;
to encourage settlement; and
to discourage and sanction inappropriate behavior by litigants.
[6] Fairness and Reasonableness Standard
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 (Ontario), 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.
[7] Offers to Settle
Rule 18 deals with offers to settle that are vital in family law cases as a tool to curtail the high cost of family law litigation. That rule sets out the procedural requirements and cost consequences of an order that is obtained that is more favourable or as favourable than the offer to settle namely, that the party making the offer is entitled to costs on a full recovery basis if the requirements of the rule are met.
[8] Analysis of the Offer to Settle
In this case, the mother served an offer to settle that met the procedural requirements of Rule 18. I find that the offer to settle was more favourable than the order made at trial with respect to the issue of custody and was as favourable on the issue of access. With respect to the issue of child support, the mother's counsel was unaware that the father was unemployed and was attending school as the father had not filed an updated financial statement until the trial commenced. The mother's offer to settle was based on the assumption that the father was still employed and therefore sought child support based on his income and pursuant to the Child Support Guidelines. No order was sought for any retroactive support order. In my view, as the mother sought child support based on the father's income and the order made imputed income to the father of $25,000.00, the offer to settle was as favourable as the order made or even more favourable as based on the father's actual income the child support order would have been lower.
[9] Costs Assessment
Applying the above noted factors to this case, I fix costs in the amount of $3,599.98 for the following reasons:
1. Importance, Complexity and Difficulty of Issues
The issues were important to both parties but not particularly complex or difficult.
2. Reasonableness of Each Party's Behavior
Although the father behaved reasonably in the court proceedings, his position was not reasonable. He offered no evidence to dispute the findings of the Office of the Children's Lawyer, he had not been able to exercise his shared parenting time in accordance with the temporary order and offered no evidence of any realistic plan of care for the child in the future. He did not file timely financial disclosure as required or evidence of his educational program so that it was difficult to determine his current or prospective income potential.
3. Lawyer's Rates
Mother's counsel has submitted a Bill of Costs based on the rate applicable to a legal aid client. Unfortunately she seemed to have assumed that she was not able to claim her usual hourly rate. This is contrary to the case law (See Ramcharitar v. Ramcharitar (2002); El Freky v. Tohamy [2010] O.J. No. 60 (OCA)), but as she has not claimed a higher rate, I am constrained to the rate she has claimed although it is well below what should have been claimed. In my view, a fair and reasonable amount for a four day trial could have easily exceeded $10,000.00.
4. Time Properly Spent
The time claimed by mother's counsel is also very conservative. Although quite correctly counsel has only claimed costs for preparation and attending at the trial and for steps in relation to the trial such as, attending the trial management conference and for attending at the trial assignment court, she could have also included amounts for time that is not directly related to any prior step in the proceeding such as, drafting the initial pleadings.
5. Expenses
The Bill of Costs only claimed some minor photocopying expenses but again expenses for filing or serving documents could have been claimed and were not.
6. Financial Circumstances of the Unsuccessful Party
The only other factor that is relevant is that the father has limited financial resources and now has another child to support. In view of the extremely small amount of costs being sought for a four day trial and the fact that the trial could have been avoided if the father had accepted the mother's very generous offer to settle, I find that the father's financial circumstances are such that he is able to pay the entire amount of costs sought.
Order
The applicant, Richard Mitchell shall pay to the respondent, Lara Lynn Carson, costs of $3,599.98 within 30 days.
The applicant's approval as to form and content of this order is dispensed with.
Justice R. Zisman
Date: July 25, 2012