Court File and Parties
Court File No.: D57015/12 Date: 2013-12-06
Ontario Court of Justice
Toronto North Family Court
B E T W E E N:
HEATHER ANN RICHARDSON Applicant
- and –
GLENN JOSEPH RICHARDSON Respondent
Counsel:
- J. Wendy Yee Kin Shin, for the Applicant
- Respondent Acting in Person
Heard: In Chambers
Justice: S.B. Sherr
Amended Costs Endorsement
[1] On November 6, 2013 I released my reasons for decision concerning this one day child support trial. I imputed the respondent's (the father) income at $35,000 per annum and ordered him to pay child support for his four children in the amount of $830 per month, retroactive to July 1, 2012. I dismissed the applicant's (the mother) claim for a contribution to section 7 special expenses.
[2] The mother was given permission to make written costs submissions. She seeks costs of $3,500, inclusive of fees, disbursements and HST. The father was given time to respond to these submissions. He did not file any response.
[3] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.
[4] Subrule 24(1) of the Family Law Rules (the rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe. To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson.
[5] Subrule 18(14) of the rules reads as follows:
Costs Consequences of Failure to Accept Offer
18(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:
- If the offer relates to a motion, it is made at least one day before the motion date.
- 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.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[6] The mother made the only offer to settle in this case. She offered to impute the father's income at $30,000 per annum and have him pay child support of $725 per month on an ongoing basis. She also asked that the father pay his proportionate share of the children's special expenses, based on the respective annual incomes of the parties.
[7] I find that this offer meets the requirements of subrule 18(14). While the overall ongoing support amount (including the proposed contribution to special expenses) is slightly less favourable in the offer, the trial result was more favourable to the mother, since it included 15 months of retroactive support that the offer proposed to forego.
[8] In determining the amount of costs, I considered the factors set out in subrule 24(11) of the rules, which reads as follows:
Factors in Setting Costs
24(11) 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 behaviour in the case;
(c) the lawyer's rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, 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.
[9] The case was important for the parties. It was not complex or difficult.
[10] The mother acted reasonably throughout the case. The father did not act reasonably. He failed to provide full and timely financial disclosure. I found that he was not a credible witness and that he was underreporting his income to Revenue Canada and to the court. He stopped paying child support once the case started. He made no effort to settle this case.
[11] The rates claimed by the mother's lawyer are very reasonable for a lawyer of her experience. The time claimed by her is also reasonable and proportionate for a case of this nature. She is only seeking compensation for about 20 hours of work, even though she spent more time on the case. Counsel's task was made more difficult by the father's failure to comply with the court's financial disclosure orders on a timely basis.
[12] The disbursements of $116.44 claimed by the mother are reasonable.
[13] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. Both these cases point out that when assessing costs it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:
However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs....Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.
[14] I considered the father's ability to pay the costs order. See: MacDonald v. Magel. A party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. Snih v. Snih. The father is able to afford to pay the costs that will be ordered by paying them in monthly instalments.
[15] Taking into account all of these considerations, an order shall go that the father shall pay the mother's costs fixed in the amount of $3,500, inclusive of fees, disbursements and HST.
[16] The father shall be permitted to repay this costs award at the rate of $150 per month, starting on January 1, 2014. However, if he is more than 30 days late in making any payment, the entire amount remaining owing shall immediately become due and payable.
Justice S.B. Sherr
Released: December 6, 2013