Court File and Parties
Court File No.: 346/12 Date: 2013-07-15
Ontario Court of Justice
Re: Sarah Mason - Applicant and Bjorn Blanchford - Respondent
Before: Justice Roselyn Zisman
Counsel:
- Samantha Dineno for the Applicant
- Self-represented Respondent
Heard On: by written submissions
Costs Endorsement
Background
[1] This is a decision regarding costs.
[2] The Applicant, Sarah Mason began an application for custody, primary residence, child support and annual financial disclosure after attempting to resolve these issues outside of the court process.
[3] The first appearance date on September 21, 2012 had to be adjourned as the Respondent, Bjorn Blanchford had not served and filed his responding materials despite being served on August 13, 2012. As a result a case conference date was not set on that date. Another first appearance was scheduled and then a case conference date of December 7, 2012 was set.
[4] The Respondent's Answer requested an order for joint custody and claimed that he and the applicant had agreed that he would not pay child support until he was discharged from bankruptcy.
[5] At the case conference on December 7, 2012 an order was made on consent requiring the respondent to provide certain disclosure within 40 days. On a without prejudice basis, the respondent agreed to pay child support of $522 per month based on an imputed income of $36,000.
[6] The parties then attended settlement conference on March 12, 2013. The respondent had not complied with the disclosure order or paid any child support. Costs of the settlement conference were reserved as a result of the respondent not being prepared for the settlement conference or provide disclosure.
[7] The respondent was given a further 30 days to provide the previously ordered disclosure. A motion was also scheduled[^1], if necessary, to permit the applicant to request an order striking the respondent's pleadings and permitting the applicant to proceed with a summary judgement motion. A timetable for the delivery of motion materials was set. The respondent failed to file any material except for a one page affidavit regarding his disclosure.
Offer to Settle
[8] The applicant served an offer to settle on April 11, 2013 to settle all issues prior to the motion. The offer to settle provided:
a. The applicant would have sole custody of both children and would consult the respondent regarding all important issues regarding the children;
b. The children would reside primarily with the applicant and the respondent would have access on alternate week-ends and an overnight visit on alternate weeks;
c. A detailed holiday schedule;
d. Child support of $817 per month based on an imputed income of $55,000 and a proportionate sharing of section 7 expenses; and
e. Waiver of retroactive support, support arrears and section 7 expenses from the date of separation, being August 7, 2011 to December 1, 2012.
[9] The respondent did not serve any offer to settle.
Motion Decision
[10] On May 15, 2013, the applicant's motion was heard for an order striking the respondent's pleadings and for summary judgement pursuant to subrule 16 of the Family Law Rules.
[11] On May 17, 2013 I released a written decision and made the following orders:
[12] The respondent's pleadings were struck and the motion for summary judgement was permitted to proceed;
a. The applicant was granted sole custody of both children;
b. The respondent was granted alternate week-end and alternate Thursday overnight access;
c. A holiday schedule as proposed by the applicant was ordered;
d. As of January 1, 2013 the respondent was ordered to pay child support of $892 per month based on an imputed income of $60,000;
e. The respondent was ordered to pay retroactive support of $715 per month, from September 1, 2011 to November 30, 2012, based on an imputed income of $48,000 with credit of $1,927.05;
f. The respondent was required to pay $1,275, being his share of the retroactive section 7 expenses;
g. The parties were required to exchange copies of their income tax returns and Notice of Assessment annually; and
h. The order was made without prejudice to the respondent being permitted to bring a motion to seek to change his child support obligations, without having to prove a material change of circumstances, upon providing proof that he had complied with the outstanding disclosure order and ongoing financial disclosure.
Costs Submissions
[13] The applicant was permitted to file written submissions as to costs within 30 days and the respondent any response within 2 weeks thereafter. The applicant served her cost submissions on the respondent on June 13, 2013. The respondent did not file any response.
[14] The applicant seeks costs on a full indemnity basis of $12,699.76 on the basis that:
a. she was the successful party and is therefore presumed to be entitled to costs;
b. she has acted reasonably throughout the proceedings;
c. the respondent acted unreasonably throughout by not complying with any court orders for financial disclosure or for child support; and
d. her offer to settle complied with all of the requirements of subrule 18 (14) of the Family Law Rules.
Legal Framework for Costs
[15] 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.
[16] In Serra v. Serra 2009 ONCA 395, at para. 8, 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.
[17] 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 rather than an exact measure of actual costs to the successful litigant.
Analysis and Determination
[18] I have considered these factors and find the following to be relevant in this case:
a. The applicant's offer to settle was more favourable to the respondent than the order made. The applicant is therefore entitled to her costs up to the date the offer to settle was served and full recovery of costs thereafter, unless the court orders otherwise. In view of the respondent's irresponsible behavior throughout that caused the applicant to incur unnecessary legal expenses, there is no basis for a departure from this rule.
b. The issues were not complex but as in any family law case of importance to the parties;
c. The applicant was forced to commence court proceedings as the respondent refused to voluntarily provide the financial disclosure necessary to resolve the issues and did not voluntarily provide child support;
d. The applicant acted reasonably throughout the court process;
e. The respondent acted unreasonably. He delayed the court process, he did not treat his obligations or the court process seriously, he failed to comply with court orders for disclosure or to pay the child support he consented to pay;
f. The lawyer's hourly rate of $290 being called to the bar in 2009 is reasonable;
g. The time spent on the case is reasonable; and
h. The usual expenses incurred for filing and serving costs are reasonable.
[19] I find that the applicant is entitled to close to full recovery of her legal expenses and a fair and reasonable amount of $12,000.00 inclusive of all applicable taxes.
[20] In view of the respondent's history and pattern of evading and ignoring court orders, this order of costs shall be enforced by the Family Responsibility Office.
Order
[21] Order as follows:
The respondent, Bjorn Blanchford shall pay to the applicant, Sarah Mason $12,000 in costs.
The Family Responsibility Office shall enforce the order as a support order.
Support Deduction Order to issue.
Justice Roselyn Zisman
Date: July 15, 2013
[^1]: As there were no settlement discussions and no opinions expressed there was no objection to me hearing the motions.